Where mediation was a condition precedent to filing suit, an action was improper when the parties didn’t engage in mediation and the defendants didn’t waive their right to enforce it.
Here, the plaintiffs suggested mediation and the defendants didn’t respond. But the lack of response didn’t constitute waiver of the right to mediate. A party claiming waiver must prove it by clear, precise, and unequivocal evidence. The absence of response doesn’t meet that standard. The plaintiffs were in a situation not contemplated by their agreement to mediate, but instead of a complaint they should have filed a petition to compel mediation or a specific-performance action. However, the court will deny sanctions against the plaintiffs, who were forced to seek the court’s involvement.
Plea in bar sustained.