In a new published decision, a court has denied an award of attorney’s fees to a seller who prevailed in a non-disclosure lawsuit, because the seller refused to participate in mediation of the dispute after being asked to by the buyer. The standard purchase contract published by CAR contains an attorney’s fees clause which provides for the recovery of attorney’s fees to the prevailing party. However, it also provides that if any party commences an action without first attempting to resolve the dispute through mediation, or refuses to mediate after the making of a request by the other party, the party who failed to mediate shall not be entitled to recover attorney’s fees. Cullen vs. Corwin (2012). The buyers contended that the sellers failed to disclosure various problems with the roof, which leaked seriously several years after the close of escrow. The sellers prevailed on a statute of limitations defense because the evidence showed that the action was filed more than three years after the buyers discovered the problems with the roof. There is a three year statute of limitations for claims based on a failure to disclose which begins to run from discovery of facts that constitute the fraud. The lesson to be learned from this case is that before filing an action arising from a purchase contract which contains this clause, a party must first offer to participate in mediation, otherwise, that party might forfeit the right to recover attorney’s fees even if they prevail in the litigation.