Using agreements to mediate as a spear (or shield)?

Ideally, an agreement to mediate presents the parties with an opportunity, but why not make it a bone of contention in a nasty ongoing piece of litigation? See Interfinancial Midtown, Inc. v. Choate Construction Company, - Ga. App. - , - S.E.2d - , 2007 WL 677863 (A06A2218, March 23, 2007), in which one party argued that the other failed to comply with the agreement to mediate. As a sidenote, the Court noted that although the agreement may have made mediation a condition precedent to arbitration or litigation, it did not apply to filing a mechanics lien. And here is the rest of it.