Does a refusal to mediate in response to a request made before instituting an action forfeits a claim for attorney fees?

Frei v. Davey (2004) 124 Cal.App.4th 1506 (Frei), upon which appellant relies in arguing that a single refusal to mediate will forfeit a claim for fees, involved a single action. Prospective buyers sued for specific performance after sellers cancelled a residential purchase agreement containing a mediation provision like the one at issue in the present case. (Id. at pp. 1509-1510.) Buyers demanded mediation prior to filing suit but received no response, then upon further inquiry after filing suit were informed sellers did not wish to mediate. (Id. at p. 1513.) Almost a year later, shortly before the trial date, an unsuccessful mediation was conducted at the request of a party against whom sellers had filed a cross complaint. (Id. at pp. 1510, 1517.) After a judgment in favor of buyers was reversed on appeal, sellers successfully moved for attorney fees. (Id. at p. 1510.) In reversing the award because of sellers' refusal to mediate at the outset of the case, the Frei court stated, "The [sellers'] refusal to mediate could not be cured one year later. The purpose of the early mediation requirement is to minimize the costs of litigation and arbitration. To allow a party to wait one year until the eve of trial to accede to a request for mediation would defeat that purpose." (Id. at p. 1517.) Frei says nothing about whether a refusal to mediate in response to a request made before instituting an action forfeits attorney fees in a related but separate action under the same contract.