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Mediation Clause Doesn't Bar Counterclaim In Ongoing Lawsuit

Tuesday, March 01, 2011 03:54 am



Vanum Construction Co., Inc. v. Magnum Block, LLC, 2010 Kan. App. Lexis 153 (Dec. 10, 2010)

Mediation is a step one that is designed to avoid a step two: litigation. Therefore, it makes no sense to require a party to start with step one when countering a claim that's already moved on to step two.

Vanum Construction Company, Inc. (Vanum) hired subcontractor Magnum Block, LLC (Magnum) to build a retaining wall on a construction project led by Vanum. After Vanum discovered cracks in the wall, it sued Magnum for breach of contract, negligence and breach of implied warranty. Magnum counterclaimed alleging that Vanum failed to pay for the sub's work. Vanum objected, claiming that the contract's mediation clause required Magnum to first offer to mediate before filing its counterclaim. A district court agreed that the "clear and unambiguous" language of the mediation clause barred Magnum's compulsory counterclaim since the sub failed to first atte [...]

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