If Fitstop chooses to mediate a dispute, can Fitstop specifically enforce its right to mediate?
Fitstop Franchise · 2024 FDDAnswer from 2024 FDD Document
Our option and right to mediate as set forth herein may be specifically enforced by us.
Each Party will bear its own cost of mediation, with you and us equally sharing the mediator fees.
This agreement to mediate will survive any termination or expiration of this Agreement.
The Parties will not be required to first attempt to mediate a controversy, dispute, or claim through mediation as set forth in this Section 19.2 ifsuch controversy, dispute, or claim concerns an allegation that a Party has violated (or threatens to violate, or poses an imminent risk of violating): (i) any federally protected intellectual property rights in the Proprietary Marks, System, or in any Confidential Information or other intellectual property rights associated with the same; (ii) any of the restrictive covenants contained in this Agreement; and (iii) any of Franchisee's payment obligations under this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 50–135)
What This Means (2024 FDD)
According to Fitstop's 2024 Franchise Disclosure Document, Fitstop has the right to specifically enforce its option to mediate disputes. This means that if a dispute arises that Fitstop wishes to resolve through mediation, Fitstop can legally compel the franchisee to participate in the mediation process.
Mediation is a form of alternative dispute resolution where a neutral third party helps facilitate a discussion between the disputing parties to reach a mutually agreeable solution. The FDD specifies that mediation will take place at Fitstop's corporate headquarters under the rules of the American Arbitration Association. Each party is responsible for their own costs, but the fees of the mediator are split equally between Fitstop and the franchisee.
However, there are exceptions where mediation is not required. According to the FDD, Fitstop and the franchisee are not required to first attempt to mediate if the dispute concerns allegations that a party has violated or threatens to violate federally protected intellectual property rights, restrictive covenants within the agreement, or the franchisee's payment obligations. In these specific cases, Fitstop can pursue other legal avenues without first going through mediation. This clause gives Fitstop additional leverage in disputes involving intellectual property, non-compete clauses, and payment compliance, allowing them to seek immediate legal remedies if necessary.