Interlocutory appeals involve review of nonfinal orders during the course of ongoing litigation, where a party seeks appellate review before the case has concluded. These matters may arise in a variety of contexts, including civil and family law proceedings, where rulings materially affect the progress of the case.
These proceedings arise from a fixed record and a defined set of issues, where the scope of review is often narrower, and the outcome may affect how the underlying litigation proceeds. As with other appellate matters, the result depends on how the issues have been preserved, how they are presented within the record on appeal, and whether reversible error can be established under the applicable standards of review. Because these appeals occur during ongoing litigation, they may affect timing, including situations where appellate review proceeds on a compressed timeline depending on the nature of the issues presented.
How Mediation Helps In This Context
Participants often address the issues presented on interlocutory review and work through how those issues are supported or limited by the record, including whether they were preserved and how they are reviewed. Because these matters arise during ongoing litigation, participants also consider how the outcome of the appeal will affect the direction, timing, and cost of the case.
They may assess how standards of review affect the likelihood of success and how different appellate outcomes, including affirmance, reversal, or remand, would influence the next stages of the litigation. In some cases, the appeal may affect leverage, case posture, or the viability of claims or defenses, requiring participants to evaluate not only the immediate issue under review but also the practical implications of continuing the dispute.
Participants may also need to account for differing expectations about risk, timing, and outcome, particularly where appellate review proceeds on an expedited schedule or where the appeal affects ongoing proceedings. Discussions may focus on whether resolution of the appeal, or of related issues, would allow the case to proceed more efficiently, or whether broader resolution may be appropriate in light of the litigation posture and timing pressures.
Common Issues
- Nonfinal orders affecting the course of ongoing litigation
- Narrowly defined issues subject to limited appellate review
- Impact of appellate outcomes on the direction and timing of the underlying case
- Interaction between appellate proceedings and ongoing litigation
- Timing, cost, and disruption associated with continued proceedings
- Public visibility of appellate proceedings and potential reputational impact
Some Considerations For Counsel Preparing For Mediation
- Identify the issues on appeal and the relief sought
- Consider how the outcome of the appeal will affect the underlying litigation
- Evaluate how standards of review affect potential outcomes and likelihood of success
- Consider how the record, including any limitations, affects the strength of the positions
- Identify practical constraints affecting available resolution options, including the impact on ongoing proceedings
- Identify who will participate and what authority is needed for resolution
- Consider how timing, cost, and disruption affect settlement positions
- Evaluate whether public visibility, published decisions, or reputational considerations may influence strategy or resolution
- Consider how any agreement would affect the progression of the underlying case