In HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41 (1st Cir. 2003), the First Circuit affirmed the district court's decision denying a motion to compel arbitration where the parties did not first request mediation as required under the contract. HIM, 317 F.3d at 44. Notably, the HIM court did not address the issue of whether the court or the arbitrators should decide whether a condition precedent to arbitration was satisfied.