As divorce mediators, we don’t often have the opportunity to comment on federal law cases, but the recent case Michael Thompson v. Nancy Cloud; Michael Miles, an opinion of the United States Court of Appeals for the First Circuit, is an exception. In an appeal from the U.S. District Court for the District of Maine, the First Circuit, whose opinions bind the New England states, upheld a trial judge’s decision to deny a counterclaim for damages, where the claimant felt aggrieved because the opposing party had brought suit, in a construction controversy, without first mediating the matter. The agreement from which suit arose required prior mediation and charged a party for the legal fees of the other party “…if the party does not agree first to go to mediation.... (Underlining the court’s)
In an extremely well written decision, the First Circuit reasoned that the plaintiff could not be held liable for the defendant’s fees for “refusal” to mediate when the opposing party never demanded it; and where the defendant defended the lawsuit on its merits without raising any objection in court, based on failure to mediate before filing suit. Pursuit of a lawsuit, without prior mediation, though required by contract, is not by itself a refusal to mediate, unless the contract explicitly defines the act of litigating in that precise way, in the First Circuit, at least; a logical result
We see this in the divorce context with some frequency. Parties will often bind themselves to mediate before bringing a modification action, most often in the areas of parenting matters and child support, but also at times with regard to college education costs, alimony changes and the like. (Most agreements do not pre-empt the right to file a contempt – enforcement -- action.) And, we have seen failure to mediate advanced as an affirmative defense to modification cases, generally resulting in a mediation effort, sometime desultory, while the modification case waits.
The lesson, in New England at least, is that if the parties intend that the filing of a modification action is to be construed as a refusal to mediate, they had better say so in their agreement!