Legal Question in Civil Litigation in California
In a Breach of Written Contract case, if the defendant (a company with Insurance), refuses to participate in ADR Process, after the Plaintiff had repeatedly requested it during pre-litigation talks (because there's an arbitration clause in the contract), and the Plaintiff goes through with filing the suit in Superior Court, would it be wise for Plaintiff to state in the introduction section of the complaint that ..."Plaintiff brings this action despite attempts to arbitrate with defendant that refused to participate in any ADR Process"... or file a "Notice of Defendant's Refusal To Participate in ADR", all just to let the court know that Plaintiff made a diligent effort to participate in ADR...I know that either party can file a Motion To Compel Arbitration,,,,or the court can, Sua Sponte, order the case to arbitration for another day, during a CMC hearing,,,,,or they might all ignore the ADR process and litigate the case through,,,,, But I wanted to know if giving an early notice of defendant's non-compliance of ADR would be helpful.
3 Answers from Attorneys
There's a difference between ADR and arbitration. In general, you begin arbitration by filing your claim with the company sponsoring the arbitration -- the American Arbitration Association, for example. There may be a company named in your agreement that you have to use, and there may not. "ADR" is a generic term for all forms of dispute resolution mechanisms outside the courts.
The other side is within it's rights to ignore your request for ADR, unless mediation is required under the agreement. You have to file your claim before the appropriate arbitration authority -- the fact that you requested ADR does not excuse you from this obligation.
You really need to speak to a lawyer here, to prevent being tied up in knots by procedural problems.
I agree with both answers given by Mr. Perry and Mr. McCormick.
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