Mediation clauses are often written with good intentions, but courts read them with precision. A recent federal decision makes this clear. When contracts treat mediation as something parties will merely “endeavor” to do, courts will encourage mediation, but they will not enforce it as a true gateway to litigation. The result is not hostility to mediation. It is something more subtle and more important for mediators, contract drafters, and ADR designers to understand.
The case in brief
In Healy Long & Jevin, Inc. v. CQSA Construction, LLC (E.D. Pa. Nov. 18, 2025), a contractor asked the court to dismiss a lawsuit because the owner had not mediated first, allegedly in violation of the dispute resolution clause. The clause stated that the parties, “shall endeavor to resolve their Claims by mediation,” and may request mediation “concurrently with the filing of binding dispute resolution proceedings,” with a 60-day stay if both were filed.
The court refused to dismiss the case. It held that this language did not make mediation a mandatory pre-suit condition. At the same time, the court stayed the litigation for 60 days to allow mediation to occur. This dual outcome, i.e., no dismissal but a stay, captures how courts increasingly approach mediation clauses.
What the court was really saying
The decision turned on two drafting signals that courts consistently read as weakening mediation commitments.
First, “endeavor” is aspirational, not obligatory.
To “endeavor” is to try, not to complete. Courts distinguish between clauses that promote good-faith efforts and clauses that condition access to court on the completion of mediation. Only the latter function as true procedural gates.
Second, concurrent filing reframes mediation as optional.
By allowing mediation to be demanded at the same time as litigation is filed, the clause treated mediation as parallel to court proceedings, not as a prerequisite to them. From the court’s perspective, mediation could not be a threshold step if the courthouse door was already open.
Seen this way, the ruling is less about rejecting mediation and more about respecting contractual clarity. Courts will not elevate mediation beyond what the parties unmistakably agreed to.
The broader pattern: encouragement without enforcement
This case fits a familiar national pattern:
When contracts clearly state that mediation is a mandatory condition precedent, courts routinely enforce that bargain.
When language is mixed, softened, or internally inconsistent, courts hesitate to impose dismissal. A remedy that can extinguish claims and implicate limitation periods. Instead, courts often choose a stay, i.e., pausing litigation, nudging parties toward mediation, and preserving access to adjudication if mediation fails.
The message is consistent. Courts will support mediation, but they will not rewrite contracts to make mediation more mandatory than the text allows.
Why this matters for mediation practice
For mediators, this distinction matters long before anyone enters the mediation room.
Weak clauses tend to produce: (a) mediation that occurs after positions have hardened; (b) Parties who view mediation as a procedural hurdle, not an opportunity; (c) sessions framed by litigation momentum rather than problem-solving readiness
Stronger clauses, by contrast, shape behavior upstream. They signal that mediation is not a courtesy, but a serious pause—a space intentionally created before disputes escalate.
Designing mediation that actually works
If parties truly want mediation to function as an early, meaningful intervention, drafting choices matter. From a mediation-design perspective, effective clauses tend to share five features:
Clear commitment. Use explicit language: mediation as a mandatory condition precedent. Avoid aspirational verbs that dilute intent.
Proper sequencing. Eliminate concurrent-filing language. Mediation should come before litigation, not alongside it.
Bounded process. Define timelines, applicable rules, and what counts as completion (impasse, time expiration, or written notice). Open-ended mediation invites avoidance.
Procedural safety. Include limited carve-outs, such as for emergency relief or limitation concerns without undermining mediation as the default first step on the merits.
Proportionate consequences. Instead of relying solely on dismissal, consider automatic stays, cost-shifting, or fee consequences for premature filings. These reinforce mediation without over-penalizing access to justice.
A final reflection
Mediation clauses do more than allocate procedure. They express how seriously parties take dialogue before conflict hardens into combat.
This decision reminds us that courts will respect mediation commitments—but only when parties make them unmistakably. Soft language produces soft enforcement. Clear commitments invite meaningful pauses for problem-solving.
For those who believe mediation matters, the lesson is not merely legal. It is cultural: if mediation is meant to be central, it must be designed—and declared—as such.