Can You Refuse Mediation? What Happens When One Party Won’t Negotiate Or Fails To Negotiate In Good Faith In California
In California, a mediation or arbitration clause in a contract is generally enforceable unless specific legal grounds render it unenforceable.
If a client refuses to communicate or negotiate in good faith, that alone does not automatically nullify the clause.
However, there are certain scenarios where a party’s refusal to engage in good faith could impact enforceability:
- Unconscionability – If the clause is found to be excessively one-sided or oppressive, a court may refuse to enforce it.
- Failure to Follow Mediation/Arbitration Procedures – If the contract specifies certain procedural steps before arbitration (such as mandatory mediation), and one party refuses to engage in good faith, this could delay or impact the arbitration process.
- Breach of Contract and Waiver – If one party’s conduct makes it impossible to fulfill the terms of the arbitration clause (e.g., they refuse to attend required mediation/arbitration sessions), they could be seen as waiving their right to enforce arbitration.
- Public Policy Considerations – Courts may refuse to enforce arbitration clauses if enforcing them would violate public policy, such as if the refusal to negotiate in good faith constitutes bad faith conduct that undermines the contractual dispute resolution process.
- Judicial Intervention – If one party refuses to participate in mediation/arbitration, the other party may petition the court to compel arbitration under California Code of Civil Procedure § 1281.2. The court can determine whether the clause is still enforceable despite the refusal.
What You Can Do:
- File a Motion to Compel Arbitration – If the other party refuses to participate, you can ask the court to enforce the arbitration clause.
- Claim Bad Faith Participation – If the client’s refusal undermines the process, you may argue that they have waived their right to arbitration.
- Seek Judicial Relief – If arbitration becomes impractical due to the other party’s bad faith, you can ask the court to hear the dispute instead.
Can You Skip Mediation or Arbitration If the Other Party Breaches the Contract?
When a contract includes a mediation or arbitration clause, both parties typically agree to resolve disputes outside of court. But what happens if one party materially breaches the contract—and the contract doesn’t have a severability clause?
Key Question:
Does a material breach of contract nullify the obligation to mediate or arbitrate? Can you proceed directly to court?
Short Answer:
Possibly—but it depends on the circumstances and how the clause is written.
Understanding the Basics
- Mediation/Arbitration Clause: This is a binding agreement to resolve disputes through a private process instead of filing a lawsuit in court.
- Severability Clause: This clause says that if one part of the contract is invalid, the rest still stands.
- Material Breach: A serious violation that goes to the heart of the agreement and defeats its purpose.
If There’s No Severability Clause…
Without a severability clause, if one party materially breaches the contract, it may call into question the enforceability of all provisions—including the arbitration clause.
However, courts typically view arbitration clauses as severable by default under California law and federal law (Federal Arbitration Act)—even if the contract lacks an express severability clause.
The California Supreme Court has repeatedly held that:
“An arbitration clause is considered a separate agreement within a contract and may still be enforced even if the rest of the contract is disputed or breached.”
— See: Buckeye Check Cashing, Inc. v. Cardegna (2006), Dream Theater, Inc. v. Dream Theater (2004)
So, a material breach does not automatically void the arbitration clause—unless the arbitration clause itself is directly tied to or affected by the breach.
When You Can Skip Mediation or Arbitration
You may be able to bypass the clause if:
- The other party waives their right to arbitrate, such as by refusing to engage in the process or acting inconsistently with it.
- The breach makes arbitration impossible or futile, such as refusing to communicate or show up.
- The clause is unconscionable or was signed under duress, fraud, or coercion.
- The arbitration clause was never properly formed, such as if there was no mutual assent.
What Courts Look For
If you file a lawsuit despite the clause, the court will decide whether to enforce the clause or allow the case to proceed.
The judge may ask:
- Was the clause itself breached or waived?
- Is it possible to isolate the clause from the rest of the agreement?
- Was the clause unconscionable or unfair?
What You Should Do First
- Review the full contract—especially the mediation/arbitration clause.
- Document the breach and any refusal to engage in dispute resolution.
- Consult with a California attorney about filing a motion to declare the clause waived or unenforceable.
- If you’re sued or want to sue, you may also need to petition the court to compel or avoid arbitration under California Code of Civil Procedure § 1281.2.
Final Takeaway
Even without a severability clause, courts often enforce arbitration provisions unless they’re inherently tied to the breach. However, a material breach combined with bad faith refusal to participate in mediation or arbitration may give you legal grounds to skip the process and proceed with a lawsuit.
