I have been sued by a previous real estate client. According to the California Association of Realtors listing agreement, he must demand mediation and then binding arbitration (if mediation doesn’t work). However, he sued me in Civil Court. We have a counter claim for breach of contract, but the listing agreement clearly says that one must demand mediation and arbitration, and if they file a lawsuit in civil court they waive their right to attorney’s fees.
Our answer is due next week. My attorney has already demanded mediation. My attorney wants to file a counterclaim in civil court, however my concern is that would waive our right to attorney’s fees (since he isn’t going through binding arbitration). I also think this will cost a lot of money (to write the counter claim compared to a general denial) so I am not sure if his intentions are correct.
Do you know how this process works? If the contract calls for mediation then arbitration, then would it be a bad strategy to file the counterclaim with my answer? Could we lose attorney’s fees? Is Res Judicata applicable? Help!
Asked on 12/01/14, 5:01 pm
2 Answers from Attorneys
William Christian
Rodi Pollock
Why is your attorney not answering these questions for you? THis is why you hire counsel.
Answered on 12/01/14, 5:04 pm
No ethical attorney will discuss a case with a represented party, unless you are looking to hire new counsel. This is a Q&A service. So it is inappropriate for us to comment. You need to discuss this with your attorney or talk to a new one about taking on the case.
Answered on 12/01/14, 5:06 pm
