Mediation Clauses Require Explicit Language

In a recent November 2025 lawsuit out of the US District Court for the Eastern District of Pennsylvania, the Court considered whether a contract’s mediation clause required mediation as a condition precedent to filing a lawsuit. The clause stated that the parties “shall endeavor to resolve their Claims by mediation”, that mediation requests “may be made concurrently with the filing of binding dispute resolution proceedings”, and that litigation shall be stayed a period of 60 days if mediation was filed concurrently. The Court found that this clause did not require mediation as a condition precedent to filing a lawsuit and thus rejected a defendant’s motion to dismiss. The Court found that the use of the word “endeavor”, and the allowance for mediation to be requested concurrently with litigation, demonstrated that mediation was not mandatory before filing a lawsuit or other binding dispute resolution proceeding. It follows that if contracting parties want to make mediation a condition precedent to litigation, then that should be explicitly stated in the mediation clause with use of simple and direct language to that effect. The Court’s decision is consistent with the notion that Courts will not read obligations into a Contract that are not clearly stated therein, and any and all obligations of a contract, including but not limited to dispute resolution clauses, should be drafted in clear, simple terms to remove ambiguity and ensure that both parties’ intent is clearly understood.