Mediation clauses are an important part of any contract, as they provide a way for parties to resolve disputes without having to go to court. But how do you enforce a mediation clause if one of the parties ignores it and files a lawsuit? In this article, we'll discuss the steps you need to take to enforce a mediation clause and ensure that it is followed. First, it's important to understand that a mediation clause can only be enforced once it is approved by the Court of Justice. If pre-lawsuit mediation is part of an arbitration provision, then enforcing pre-lawsuit mediation is relatively simple. In federal court, the defendant can request mediation and then arbitration or suspend litigation pending mediation and arbitration.
Similarly, in state court, the defendant can request a stay of litigation instead of mediation and then arbitration. When the plaintiff files a lawsuit in court without first mediating or arbitrating, the defendant can attempt to compel both mediation and arbitration under the Federal Arbitration Act, 9 U. S. C. § 1 et seq.
For example, in the case of Heston v. Heston, the sales agreement contained a mediation clause that required the Buyer and Seller to mediate all disputes or claims that arose from the Sales Agreement before commencing legal proceedings. The defendant in this case was able to enforce the mediation requirement by requesting the arbitrator to dismiss or stay the action until the required mediation was completed. In order to enforce a mediation clause, the defendant must first submit a pretext for a subpoena to protect the statute of limitations and then fill out and file the request form for transfer of mediation with the appropriate organization (e.g., Pennsylvania Association of Realtors). The Court will then order: (a) the pretext and rule for filing a complaint to be nullified because the parties were required to mediate in accordance with the sales agreement; and (b) the parties were ordered to mediate their dispute accordingly. Unfortunately, under Oregon law, there is no clear answer as to what happens if one of the parties ignores the pre-lawsuit mediation requirement and files a complaint in a state or federal court regarding a lawsuit subject to pre-lawsuit mediation requirement.
However, sister jurisdictions offer conflicting guidelines that may be useful in determining how best to proceed.
