Contracts are, with increasing frequency, requiring pre-dispute mediation before a complaint can be filed in arbitration or in court. In Hangartner v. Alexander, 2015 IL App (4th) 140272-U, the court was faced with the question of whether a trial court order requiring pre-dispute mediation was immediately appealable. It is well-established that orders granting or denying a request for pre-dispute arbitration are immediately appealable. Courts find that such orders are in the nature of injunctions and therefore appealable. Hangartner, however, held that an order granting or denying a request for mediation based on a contractual requirement is more in the nature of an administrative action taken by a court to control its docket. Thus, an order enforcing or refusing to enforce a contractual mediation requirement cannot be appealed until the end of the case.
Refusing to hear appeals of orders granting or denying mediation requests until the end of a case effectively makes it impossible to hear such appeals. Once the case has been decided on the merits, it is too late to order a mediation or prevent a mediation from taking place. Yet, this is probably a good thing from a policy standpoint. An order incorrectly granting or denying a request for arbitration will irretrievably place a dispute in the wrong forum. An order incorrectly granting or denying a request for mediation will have no prejudicial effect on the merits of the ligation.