Recently there have been a rash of delinquent clients and one that I have pursued for more than a year has apparently gone to mediation.
Today I got a call from the mediator explaining that the delinquent client will allow me to keep the retainer amount he paid to secure my services, but will refuse payment of the balance because my survey is wrong. He also made a vague reference to documents the client showed him that will prove my survey is wrong.
I am amused, and will not hesitate to see this delinquent client in court. How generous of him to "allow" me to keep my retainer fee. Because, he states, through the mediator, in court he will ask the judge to award him all the money back. Now I am sure that we will see him in court.
I told the mediator that the delinquent client has signed a contract for the work thereby requiring him to pay. Also, if he had information about his survey that he did not disclose or deliberately concealed, except to use in refuting my fee, then that is wrong and any judge will see that.
Besides the delinquent client's juvenile and delusional claims, the land was part of a recorded subdivision plan and can hardly be viewed as disputable.
Every survey contract should have a ‘juvenile and delusional’ delinquent client clause. Withholding relevant documents as proof to wit.
Is mediation called out in the specific contract language?
I prefer not making mediation automatic as an incentive to show the intent to resolve pre-trial. Most reasonable people deserve to try to settle and be human.
That way if they are refusing to meditate, then unfold the disaster they initiated by breech, and perfect those liens, release the hounds, and then call Moose and Rocko.
[ . . . ] but will refuse payment of the balance because my survey is wrong. He also made a vague reference to documents the client showed him that will prove my survey is wrong.
That would alert my spidey-sense. I'd request proffer of "the documents" because in mediation both sides have to lay it all out on the table.
I'm suspicious this "mediator" is not on the up and up. Mediation is carefully controlled by the courts. An "apparent mediation" is not how it works. Has this stuff happened:
- Did either of you file a complaint, lien or lawsuit and then both agree to enter mediation? If so, they mediation must occur within 150 days or so after the court approves, not drag on for over a year.
- There's lots of paperwork involved and it should be clear you've agreed to mediation by signature.
- Mediation is a formal procedure where an in-person meeting occurs, or rarely the parties are separated into different rooms to avoid fisticuffs. Sometimes a second meeting occurs a few weeks later.
- Mediators charge $150/hr for a limited civil action such as yours and typical meetings last less than two hours, payment split half and half. Have you met your client over the table with a court approved mediator and coughed up $150+- for the experience? If not no mediation has occurred.
This stuff has happened:
- "Today I got a call from the mediator explaining that [ . . . ]" Never heard of that happening! The mediator represents you both and a private phone discussion with only one party would be way out of line. Mediator's are selected by the Court after completing an application and adhere to strict ethical standards. You can file a complaint concerning a mediator to the Court if you feel unethical activity has occurred.
- The "mediator" made a formal offer of the retainer fee only, not the contract amount. This is tricky, as going to Court could cost thousands and a half a jug of honey is better than spending 4 times the money for a full jug.
- "[ . . . ] the land was part of a recorded subdivision plan and can hardly be viewed as disputable." My take is the survey couldn't have been that expensive and sucking up a small loss is better than entering litigation. The best advice I've gotten from attorneys is my beef is not worth pursuing cost wise so get the best deal you can in mediation, even though I'm absolutely right.
I pontificate because I've been involved in about half dozen mediations in my life, privately concerning car wrecks, medical malpractice and warranty work, and at work concerning some tricky questions concerning culpability and unforeseen conditions which amounted to a few hundred thousand dollars. Mediation resulted in both parties feeling butt hurt, but avoided going to court where it's a game of high stakes poker.
Seems you're totally in the right and a court would honor your contract but don't get all hussy and spend thousands in court chasing hundreds. The mediation should have proven your contract and I'm surprised you're being stiffed so there's something wrong here. If a real mediation is occurring continue to demand your full fee for services rendered and get the best deal you can to avoid court.
My first step would be to demand any information bearing on the correctness of the survey. Dollars to donuts that turns out to be the county GIS or a phone app.
If they actually have information that would change your mind, then it gets corrected without adding to the original contract price.
If their information is useless, tell them how certain you are they will lose in court. Maybe send them some case files.
Maintain a strong front up until the last minute before going to court and then settle for what you can get out of court.