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Litigation Avoidance 101

Thinking Through the Use of Boilerplate Provisions for Arbitration, Mediation, and Attorney Fees in Real Estate Contracts

By Michael F. Donner

Attorneys frequently copy standard provisions from one contract into another to save their clients money and themselves time. These standard, or “boilerplate,” provisions often look harmless enough. They generally deal with matters extraneous to the underlying deal, like arbitration or the recovery of attorney fees in the event of a dispute, and are relegated to obscurity at the end of the contract. Many firms develop and make available to their attorneys form agreements of various types. Within the ranks, tinkering with an agreement that has been battle-tested over many years of use is often resisted. “If this masterpiece is good enough for that senior partner in the corner office,” so the thinking goes, “it ought to be good enough for me.”

It may not be. The indiscriminate cutting-and-pasting of boilerplate provisions in contracts—without thinking through what the client’s individual needs might be, how the incorporated provisions might relate to other clauses in the new agreement, or what potential problems the boilerplate provisions might unexpectedly cause—is a dangerous trap for the unwary. Use of the provisions under certain circumstances could have unforeseen legal consequences that might deleteriously alter or otherwise affect the transaction and lead to disputes. If this occurs, the client potentially could look to its attorney to compensate it for the damages and the fees and costs it incurred as a result of an unanticipated legal entanglement.

Although many boilerplate provisions are commonly used by real estate lawyers, this article focuses on perhaps the two most overused and commonly misunderstood of them all: the arbitration and mediation clause and the attorney fees clause. Numerous hidden “trip wires” and issues attend the use of such boilerplate provisions. Attorneys should be aware of the ramifications of such clauses and avoid the potential unanticipated and costly consequences of their injudicious use.

Boilerplate Mediation and Arbitration Provisions

In the abstract, alternative dispute resolution (ADR) seems like a good idea. During the last 25 years, as the number of lawsuits has increased, litigation, as a traditional dispute resolution mechanism, has come under fire not only from the general public, but also from within the legal profession. Today, almost as an instinctual reaction, lawyers frequently try to avoid placing their clients in a position in which litigation is the sole option if a dispute arises. ADRclauses have become so commonplace in real estate contracts that lawyers often insert them into the agreements first and then ask the necessary predicate questions later. When ADR works, it is faster, cheaper, and more effective in resolving the parties’ disputes. When it fails (sometimes because of the deficiencies of a poorly drafted ADR provision), the result can be devastating, both to the underlying real estate transaction and to the partiesthemselves.

A typical form boilerplate ADR provision might read something like the sample in the box above. On the surface, this provision appears to provide the parties with a legitimate alternative to litigation in the civil courts. This clause, however, like many other boilerplate provisions, is rife with issues that require further examination.

Not Every Dispute Is Suited for Mediation

Mediation has many advantages. In many of the long-term relationships that exist in the real estate industry (e.g ., between banks and developers, general contractors and developers, and general contractors and subcontractors), disagreements frequently arise over things like value and appraisal methods, rate of return, or progress in construction. By mediating such disputes, long-term relationships can often be better preserved because the parties’ disputes potentially can be resolved quickly and early. Mediation also offers the parties a chance to resolve their disputes with the help of a jointly selected mediator who—because he or she has a unique knowledge of, or perspective on, the real estate industry—might be able to evaluate the parties’ respective positions better than a judge or jury.

Mediation may not be appropriate, however, in every instance. In extremely time-sensitive transactions, such as construction or financing matters, for example, mediation may actually be a disadvantage. Some mediation clauses (like the boilerplate provision featured above) require the parties to mediate their disputes before commencing litigation, but do not set a deadline when the mediation must be completed. Such a clause may potentially be used to prevent one of the parties from quickly and efficiently obtaining relief. If the clause requires the mediation to occur at a mutually agreeable time and place in front of a mediator to be chosen jointly by the parties (or is silent about these issues), and no time limit or default mechanism is written into the contract in the event the parties are unable to agree, one party can delay the other from filing a lawsuit or commencing an arbitration for a prolonged period of time—perhaps even months. Under these circumstances, the party seeking to avail itself of appropriate remedies may be forced to file with the courts a motion to compel the commencement of the mediation and the selection of a mediator. Such legal maneuvers are not only costly, but they also defeat the purpose of a mediation in the first place: to provide a speedy and cost-effective mechanism to resolve the parties’ dispute. If time is of the essence and the mediation provision does not contain either a time limit or a carve-out allowing the parties to seek certain expedited relief immediately, one party’s delay tactics might cause the other party to suffer irreparable harm. The client potentially could lose the war even before the first legal battle has been joined.

Practitioners may wish to consider carefully whether their clients will benefit from mediation.  If, after weighing the advantages and disadvantages, the client chooses to include a mediation provision in the contract, the attorney should establish with certainty:

•     Where the mediation is to take place,

•     How the mediator is to be selected,

•     How the parties can quickly move forward with the mediation in the event they are unable to agree on a mediator, and

•     What the scope of the mediation should be.

When the client appears at the outset of the contractual relationship to be the one that will more often than not seek to avail itself of judicial or arbitral remedies, or both, its attorney may wish to make mediation voluntary rather than mandatory. When time is of the essence, a carve-out provision should be inserted in the agreement to allow parties to seek expedited relief immediately for, among other things, writs of attachment, writs of possession, and the appointment of a receiver. A mediation clause also should provide for the possibility that the mediation will fail and that the parties will need to move forward promptly with an action or arbitration.

Not Every Dispute Is Suitedfor Arbitration

Arbitration also has its advantages as a mechanism of ADR. Arbitration may be less expensive and quicker than litigation. The parties may design the scope of their arbitration to meet the particular needs of the transaction and jointly select an arbitrator (perhaps one who is familiar with the real estate industry) to adjudicate the dispute.

But arbitration is not the answer in every instance. In some cases—particularly those involving claims for which a jury trial is not available, provisional or injunctive remedies, large-scale discovery—civil litigation might actually be preferable. Some jurisdictions, such as California, allow litigants to commence civil actions to obtain provisional or injunctive remedies without waiving their right to arbitrate underlying claims. See C al. Civ. Proc. Code§ 1281.8(b) (West Supp. 2003). Under these circumstances, a “wait and see” strategy regarding arbitration might work better than mandatory arbitration. The parties may later agree to arbitrate after a dispute develops instead of committing themselves at the beginning of their contractual relationship to arbitration. If a dispute does arise, the parties’ counsel can then decide what type of ADR mechanism will best meet their clients’ needs.

Careful drafting of contractual arbitration provisions and a full consideration of the legal and practical ramifications of such provisions are essential. When drafting an arbitration clause, practitioners should pay particular attention to the following issues.

Timing and Scope of the Arbitration

Boilerplate clauses, such as the one above, require binding arbitration of all disputes “arising out of” or “relating to” the transaction. A party, therefore, may be committed to binding arbitration and give up its right to a trial and to appeal the arbitration decision without realizing it. Counsel should consider whether his or her client intends for all disputes pertaining to the contractual relationship to be arbitrated or whether it is more prudent to tailor the arbitration provision narrowly so that only certain discrete aspects of the relationship are governed by the clause. Because an arbitration is like a trial (but held in less formal surroundings than a court), counsel also should consider how much time he or she will require to prepare for the arbitration and what discovery, interviews, exhibits, and law and motion they will probably need. A client’s desire to quickly and efficiently submit the parties’ dispute to an arbitrator for adjudication may backfire if its lawyer does not have sufficient time to prepare for the arbitration proceeding.

Format and Scope of the Arbitration

Attorneys drafting arbitration provisions should never lose sight of the fact that many aspects of a potential arbitration may be pre-determined by contractual agreement. The authority of the arbitrator may be limited or expanded. The nature, scope, and timing of discovery may be restricted or enlarged. The parties may empower the arbitrators to issue subpoenas, set hearing dates, and grant or deny postponements or discovery requests when the arbitrators do not already have such powers under the governing law. The number and professional credentials and experience of the arbitrators also may be determined by the parties. Drafters of arbitration clauses may even define the types of remedy the arbitrators are empowered to award, require the arbitrators to render“reasoned” awards (this is because some foreign countries will not enforce a U.S. arbitration award unless the arbitrator has submitted a “reasoned” decision), and limit the time in which the arbitrators have to make their rulings and render their awards. Time limitations may be useful when irreparable harm would result in the event of a delay. The boilerplate provision above, however, contains none of these provisions.

Rules Governing the Arbitration

Arbitration clauses, such as the one above, frequently state that the arbitration will be governed by the then-operative rules of the American Arbitration Association (AAA) or similar organizations. It is important, however, to consider what those rules are and how they may affect the arbitration before the client agrees to be bound by them. If the rules of any private judging organization are to be used, those rules should be carefully reviewed to determine whether they comport with the parties’ objectives in the arbitration. To the extent they do not serve the parties’ needs, either counsel may  look to the AAA or state arbitration statutes as “gap-fillers,” or they can agree to handle certain situations that may arise in a contractually mandated manner. Some jurisdictions, for example, may not provide a procedural mechanism to compel arbitration when the parties disagree that a contractual arbitration clause covers their dispute. The parties, therefore, may wish to provide expressly in the contract for such a contingency.

Moreover, although the laws of many states allow the taking of discovery during arbitration, the parties may wish to expressly expand or restrict that discovery. For example, the parties may limit the number of depositions that can be taken or restrict written discovery solely to document demands (as opposed to interrogatories, requests for admission, and other discovery devices). The parties also may avoid discovery altogether and agree to informally exchange all documents supporting their contentions and damages claims to save time and money.

Issues Involving ArbitrationCosts and Fees

The common wisdom is that arbitrations are cheaper than civil trials. This is not always the case. Some arbitrations take on a life of their own and become more expensive than court actions. Arbitrators, for example, may be more permissive than judges in procedural and discovery disputes. They also are not bound by the rules of evidence or any local “fast track” rules that require parties to bring cases to trial within certain statutorily mandated time periods. When the arbitration proceeding is complex, involves multiple parties, or takes place over the course of many days, costs can add up quickly (particularly in some legal markets where private judges charge as much as $700 or more per hour). One solution might be to draft the arbitration clause to allow the prevailing party to recover its attorney fees and costs, so long as the client is aware of the risks of losing the arbitration and knows just how much it will be required to pay in attorney fees and costs if it loses.

Award Enforcement and Appeal

The boilerplate arbitration clause above, like many others used by practitioners, is silent about the enforcement of awards or the availability of an appellate procedure to challenge awards. This may lead to enormous problems if the client loses the arbitration—an event most lawyers never like to consider. Both lawyers and clients should be aware of the issues relating to the enforcement and appeal of arbitration awards.

Typically, the prevailing party files the arbitrator’s award with the court and then asks the court to interpret and enforce it. This is time-consuming and can open the door to delay and challenges by the losing party. One solution is to write the arbitration clause to require the losing party to execute a stipulated judgment based on the terms of the arbitration award that will be filed with the court. The judgment can include the attorney fees and costs awarded to the prevailing party by the arbitrator.

In most states, there are inherent limits on a client’s ability to appeal an adverse arbitration award. In many of those jurisdictions, unless otherwise provided in the agreement, an arbitrator may award any remedy reasonably contemplated by the parties even though a court could not have done so. See, e.g., Advanced Micro Devices, Inc. v Intel Corp.,885 P.2d 994, 1005-06 (Cal. 1994). Notably, an arbitrator need not follow legal rules or laws and apply them to the facts to render an arbitration award. See Wilko v. Swan, 346 U.S. 427, 435-36 (1953), overruled on other grounds by Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Parties that agree by contract to submit to binding arbitration give up their right to trial and the right to appeal the arbitration order except on very limited grounds. See Moncharsch v. Heily & Blase, 832 P.2d 899, 904 (Cal. 1992).

An arbitration award, therefore, may generally be appealed in the courts only under extremely narrow circumstances, such as when there is substantial evidence that the arbitrator committed fraud in rendering the award. In other words, in many jurisdictions, an arbitrator can get it totally wrong, apply the law incorrectly (or simply ignore it), and render an adverse award against the party that correctly should have won, and there is nothing anyone can do about it (absent a showing of extrinsic fraud in the arbitral process). Accordingly, before practitioners have their clients sign real estate contracts containing arbitration provisions, they should satisfy themselves that their clients understand the risks and benefits of the arbitral process. If appellate rights are to be provided by agreement, the parties should determine how those rights are to be effectuated and the timing for doing so.

With all this as background, the boilerplate ADR provision on page 20 is analyzed in the box below.

Boilerplate Attorney Fees Provisions

Lawyers are frequently asked by their clients whether the attorney fees and costs they incur in litigation or arbitration can be recovered. The general rule in the United States, of course, is that such fees and costs are not recoverable except as specifically provided by statute or as the parties agree by contract. In light of this general rule, many attorneys often include boilerplate attorney fees provisions in real estate contracts to “protect” their clients in the event the other party breaches the agreement. In analyzing the appropriateness of an attorney fees provision, however, lawyers should determine whether their clients are the parties who will most often bring a lawsuit arising out of the contract or whether they are more likely to be sued in connection with it. A typical boilerplate attorney fees provision might read something like this:

Although the attorney drafting this provision may think he or she is helping the client by including such a clause in the parties’ real estate contract, the reality is that boilerplate clauses such as this one could actually do more harm than good.

Scope of the Provision

As with any contractual provision, the scope of attorney fees clauses may be narrowed or expanded by the specific language of the parties’ agreement. A careless drafter might inadvertently limit the provision’s application to only those actions arising out of a breach of the agreement itself—as is the case with the example provided above—and thereby deprive his or her client of the opportunity to recover fees and costs in a host of tort and other actions that might potentially be brought in connection with the agreement. The most effective fee clauses, therefore, are extremely broadly worded to allow for the recovery of fees in both tort and contract claims. Such broadly worded fee clauses typically provide for the recovery of(1) fees and costs, (2) in any suits,disputes, controversies, actions (including those for injunctive and declaratory relief), or litigation,(3) “relating to, arising out of, or based on” the real estate transaction. They also expressly provide for the recovery of any fees and costs incurred during the appellate process.

Contractual provisions providing for recovery of fees and costs in any “suit” or “court action” relating to or arising out of the contract also have been held in some jurisdictions to apply to arbitration proceedings. See, e.g., Tate v. Saratoga Sav. & Loan Ass’n, 265 Cal. Rptr. 440, 447-48 (Cal. Ct. App. 1989), disapproved on other grounds, by Advanced Micro Devices, Inc., 885 P.2d at 427. Nonetheless, to leave no room for doubt on the subject, if the agreement calls for arbitration (instead of litigation), the attorney fees provision should be modified to authorize a prevailing party fee recovery in arbitration. If the parties enter into several contracts as a part of a single relationship or transaction, a contractual fee recovery provision should specifically state that it will be applied to the other documents in the transaction and that they will be construed together to effectuate the purpose of theprovision.

“Be Careful What You Ask for”

The insertion of an attorney fees provision in real estate agreements creates certain risks. A client should be aware that if it does not prevail in any litigation arising out of the contract, it could end up paying substantial attorney fees to the other side. Many clients, especially those who often view an attorney fees clause as an instrument to protect them in the event of the other parties’ breach, frequently do not contemplate this risk. Lawyers also should pay particular attention to applicable state law provisions concerning fee recovery. In California, for example, even if a contract provides that only one party may recover attorney fees in litigation to enforce the agreement, the attorney fees clause will be read as creating reciprocal rights in favor of the prevailing party regardless of which party initiates the action. See Cal. Civ. Code § 1717(a) (West 1998) . Section 1717’s reciprocal right to fees recovery, however, applies only to actions on the contract containing the attorney fees provision. There is no such right to fees if the asserted claims sound in tort and the contract gives only one party the right to recover fees if it prevails in the litigation. See Moallem v. Caldwell Banker Commercial Group, Inc., 31 Cal. Rptr. 2d 253, 255-56 (Cal. Ct. App. 1994). Accordingly, if the contract is to be governed by California law or by the law of a state with similar fee recovery statutes, the attorney fees provision should be drafted broadly so that the prevailing party can recover fees regardless of whether the claims sound in tort or contract. A fee clause also may be drafted to benefit whichever party prevails rather than only one party. If the client wants to restrict fee recovery solely to situations in which litigation arises out of the parties’ contract, a narrowly worded provision limiting recovery to actions “on the contract” or “to enforce the contract” is recommended.

Prevailing Party Issues

When a fee provision allows a “prevailing party” to recover its fees and costs, it is often difficult to determine precisely which of the parties has “prevailed.” In many jurisdictions, except when an action has been voluntarily dismissed, the party receiving the “greater relief” in the action is the “prevailing party.” See Sears v. Baccaglio, 70 Cal. Rptr. 2d 769, 774 (Cal. Ct. App. 1998). The party receiving the “greater relief” is not necessarily the party receiving the greater monetary judgment, however, and trial courts are vested with broad equitable discretion to determine the “prevailing party,” even when a successful litigation receives no monetary judgment. Id. at 779. Clients should also be aware that, in many states, even if a contract appears to provide for attorney fees, the trial courts have discretion to determine the total amount of an attorney fees award and to limit the award only to what they believe is “reasonable.” This is significant because the ultimate award may end up being for far less than the amount of fees and costs actually incurred by the client in the litigation. In California, for example, when the results of litigation are mixed—that is, when victories and losses between the parties are evenly divided—there is no mandatory duty to declare a “prevailing party.” Nasser v. Superior Court, 202 Cal. Rptr. 552, 555-56 (Cal. Ct. App. 1984). The courts also may determine whether the amount of attorney fees sought under an attorney fees clause is “reasonable” in light of prevailing market rates for such legal services. See PLCM Group, Inc. v. Drexler, 997 P.2d 511, 518 (Cal. 2000).

Anticipating Third-Party Claims

Practitioners should also be aware that nonsignatories to real estate contracts containing attorney fees provisions may recover fees as a “prevailing party” in an action. For example, a cooperating broker, successfully suing to obtain a commission under a listing agreement between the listing broker and the seller, may obtain attorney fees if the listing agreement contains an attorney fees clause and the broker is found to be a third-party beneficiary of that clause.

In California and other states, the critical test for determining whether a nonsignatory can recover fees under a contract is whether that party would have been liable for the opposing party’s fees had it lost the action. See Real Prop. Servs. Corp. v. City of Pasadena, 30 Cal. Rptr. 2d 536, 541 (Cal. Ct. App. 1994). A prevailing party may enforce a contractual attorney fees provision against a nonsignatory to a real estate contract when pertinent portions of the contract refer to the nonsignatory and the attorney fees provision “unambiguously included the [nonsignatory] within the ambit of its benefit provisions and its performance obligations.” Pac. Preferred Props., Inc. v. Moss, 84 Cal. Rptr. 2d 500, 504 (Cal. Ct. App. 1999). These rules apply even if the party prevails on the theory that the contract is non-existent or unenforceable. See Hsu v. Abbara, 891 P.2d 804, 808-809 (Cal. 1995).

The boilerplate attorney fees provision on page 23 is analyzed in the box above.

Conclusion

As highlighted by the examples provided above, boilerplate contract provisions are traps for the unwary. If not drafted carefully, such clauses could have unanticipated legal consequences that might lead to litigation. It is important for all provisions of a real estate contract to be carefully scrutinized and drafted with an eye toward the client’s ultimate objectives in consultation with litigation attorneys or local counsel, or both, as the transaction may require. As a matter of standard practice, lawyers should always carefully assess the nature and potential legal effect of boilerplate provisions and satisfy themselves that their clients understand the purpose and effect of the provisions and that the scope and nature of the boilerplate provisions comport with their clients’ needs and interests.

Boilerplate ADR Provision

Mediation and Arbitration of All Disputes. As a material part of this Agreement, the parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement or the purchase of the Property, shall be determined by confidential, final and binding arbitration in San Francisco, California, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association.  Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal.  Any award shall be final, binding and conclusive upon the parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, each party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in an attempt to informally resolve said disputes, claims or controversies without the need for arbitration.

Boilerplate Attorney Fees Provision

Attorney Fees. The prevailing party may recover its reasonable attorney fees in any lawsuitarising out ofthe breach ofthis Agreement.

ADR Provision Analyzed

Deficiencies of theBoilerplate Clause Possible Remedial Language & Strategy
•     Requires mediation as predicate event.•     Make mediation voluntary.
•     Scope and terms of mediation undefined.•     Provide for location of mediation; set time limits and default mechanism for selection of mediator; define terms of mediation and means of selecting mediator.

•     Requires arbitration.

•     Discuss with client whether arbitration is efficient way to resolve dispute.
•     Scope and terms ofarbitration undefined.•     Provide terms for obtaining injunctive relief, standards for arbitrators, deadline for rendering award, and mechanism for enforcing award.
•     No requirement of “reasoned” award.

•     Require arbitrator to specify basis of awards.

•     No mention of any appellate process.

•     Specify what can be appealed and how.

Attorney Fees Provision Analyzed

Deficiencies of the Boilerplate Clause Possible Remedial Language & Strategy
•     Limits recovery tolawsuits on contract.

•     Modify language to provide for recovery in “lawsuits, arbitrations, or other proceedings arising out of, relating to, or based on in any way” the real estate transaction, including tort actions and actions for injunctive, declaratory, and provisional relief.

•     Fails to provide forcosts or appellate fees and costs.

•     Provide for recovery of such fees and costs.
•     Potential multiple documents problem.•     Recite that all documents are governed by same fee and cost clause.

•     Allows court to determine what fees are “reasonable.”

•     Replace “reasonable” with “actual” to reduce (but not eliminate) risk that court will reduce fee award.

•     Potential prevailingparty issue.

•     Discuss risks with client and provide carve-out precluding recovery in the event of voluntary dismissal of action.


Michael F. Donner is of counsel with Stein & Lubin LLP in San Francisco, California, and chairs the B-3 Real Property Litigation and Alternative Dispute Resolution Committee.

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