March 04, 2015 Practice Points

Order Requiring Mediation Not Appealable

By Jonah Orlofsky

In Hangartner v. Alexander, 2015 ILApp (4th) 140272-U, the trial court enforced a contractual dispute resolution clause and ordered the parties to “mediate/arbitrate” the dispute before the suit could proceed. It seemed to have been the court’s intent to order mediation, but the order included the reference to arbitration, as well. The defendant, although it was the party that moved to enforce the clause, sought to appeal because the trial court did not specify how the dispute resolution process would work and because the court failed to award the defendant fees for prevailing on the motion. The appellate court ruled that it lacked jurisdiction over the appeal.

The court first noted that, while orders compelling or denying arbitration are appealable, orders concerning pre-trial mediation are not appealable. Orders addressing motions to compel arbitration are considered injunctions and therefore immediately appealable. Citing Short Brothers Construction, Inc. v. Korte & Luitjohan Contractors, Inc., 356 Ill.App.3d 958, 960–61, 828 N.E.2d 754, 756 (5th Dist. 2005), the court held that orders compelling or refusing to compel mediation, even though they require the parties to take a certain action, are not injunctions. Rather, they are administrative actions taken by courts to control their docket. Thus, appellate courts do not have any jurisdictional basis for hearing an appeal of an order compelling or denying a request for pre-dispute mediation. Since the order in question was ambiguous and may have only been intended to order mediation, the appellate court ruled that it lacked jurisdiction to hear an appeal from that order.

Keywords: alternative dispute resolution, litigation, mediation, compel, arbitration, appeal, jurisdiction

Jonah Orlofsky is the founder of The Law Offices of Jonah Orlofsky in Chicago, Illinois.


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