Arbitration--Arbitrator's Handbook to Compulsory Arbitration

Arbitration pursuant to Superior Court Civil Rule 16.1 is a mandatory non-binding dispute resolution approach, requiring referral of disputes involving a fixed range of monetary claims to lawyer-arbitrators who render decisions which are case dispositive or serve as a basis for settlement. The program is designed to insure the expeditious diversion of amenable cases to the program in an effort to have matters resolved early in the life of a case. The ultimate goal of arbitration is to secure a just and fair determination of every action in less time and at less expense than those cases which are not subject to arbitration.

Attorneys who offer their services to the Court as arbitrators undertake a great responsibility to the bar, the courts and the public in helping to reduce costs to litigants, attorneys, and taxpayers and to make the resolution of monetary claims in selected cases more efficient. The success or failure of this program depends upon the abilities and dedication of the arbitrators, whose suggestions for improvements are expected and whose evaluation of the program will be solicited.

An arbitrator acts as an arm of the Superior Court by judicial appointment, empowered with the authority of a trial judge to conduct hearings and charged with the duty to decide, not to mediate or conciliate. Acting as the sole juror in finding the facts, as a judge in applying the law, and as an arbitrator in rendering an award, the trial lawyer will find the role as a neutral arbitrator more difficult than the accustomed role as a professional advocate.

The suggestions in this arbitration handbook are offered to standardize procedures and to assist arbitrators with some suggestions when unexpected problems arise. Arbitrators should address questions and suggestions concerning administrative procedure in a specific case to Margaret Derrickson, Director, Alternative Dispute Resolution.

HEARING PREPARATION

Appointment and Scheduling

Upon stipulation or appointment, the arbitrator should read the online Arbitration Manual. Contact the attorneys and/or pro se litigants to schedule a hearing at a mutually convenient time. Use the teleconference whenever possible. Rule 16.1 (k) requires that a hearing be scheduled within thirty (30) days and held within sixty (60) days of your appointment.

The arbitrator has complete discretion in setting the date, time, location, and length of the hearing. Hearings may be held in the evenings or on weekends. The average arbitration hearing takes approximately 1 to 2 hours.

If, in addition to the parties, it is necessary to have witnesses testify, a witness list must be submitted by the parties/counsel as quickly as possible so that you may run a conflict of interest check.

The hearing may be held in the arbitrator's office, or in any location mutually acceptable to the parties. If necessary, space in the Courthouse can be arranged.

New Castle County	Patrick O'Brion	302.255.0586
Kent County	Bruce Pearce	302.739.5337
Sussex County	Terry Hearn	302.856.5303

Arbitrations involving incarcerated parties and/or witnesses must be held in the Courthouse. Contact the above officers for scheduling.

If a hearing cannot be scheduled within the thirty (30) days, please:

Contact the assigned case manager for that judge to verify the necessity and/or the reason for the delay.

Send the Hearing Notice Form Letter 16.1(k)(1) in the online Forms Packet to the case manager indicating the reason for delay. Even if a delay is warranted, a hearing date must be scheduled.

Physical Examinations. If a physical examination is requested timely (attached to responsive pleading), the case will not be assigned for ADR until the physical examination has been completed or the expiration of ninety (90) days from the request, whichever occurs first. Interrogatories and sworn statements must be filed by the defendant within ten (10) days of receipt of the physician's report by the defendant.

Confirm the hearing date, time and location using the Hearing Notice Form Letter . The case managers will monitor the setting of a hearing date.

Pre-Hearing Exchange of Information

The arbitrator does not have access to the Prothonotary's file. All pleadings, records, reports and other exhibits must be supplied by the parties, with all references to insurance coverage deleted. Please note, you will have to sign an Order after the hearing in which you certify that you have not examined and are not familiar with the amount of insurance coverage with respect to any claim.

Legal questions or concerns posed by pro se litigants should be directed to the assigned case manager for referral.

Pre-Hearing Motions

Read the Civil Motion Practice Procedure provided in the online Arbitration Manual. (Rule 16.1 (k)(10)).

Arbitrators are encouraged to conduct prehearing teleconferences with counsel to resolve any problems and to determine the necessity for memoranda setting forth any arguments and/or legal authorities that should be presented to the arbitrator for any decisions that will be required. Memoranda should be limited to one page. No briefing is warranted.

Any outstanding motions can be decided by the arbitrator prior to the hearing, or at the hearing itself. No written order is necessary to decide prehearing motions, a verbal decision is sufficient. Decisions at the hearing can be incorporated into the Arbitrator's Order.

Civil Action Number

The case Civil Action Number, followed by the judge's initials, and the word "Arbitration" must appear on all documents, correspondence, and checks for fees that are sent to the assigned case manager in the Prothonotary's Office.

Arbitration Decisions File

The Law Libraries in all three counties should have a Decisions File. Please refer to this file when ruling on motions or deciding specific issues in a case.

Ex Parte Communications

As an appointee of the Court, the arbitrator should avoid any ex parte contact with any party.

The arbitrator must copy the parties on all documents sent to the Court, especially the Arbitrator's Order.

Settlements

If a case settles prior to the hearing, arrange a teleconference with all parties to confirm. Use the Settlement Confirmation Letter, Rule 16.1 (k)(11)(A) to notify the court, within 5 days of settlement. Please be sure to copy all parties. Include your Arbitrator's Evaluation with the Court's copy, so that you will be paid for any non-hearing time. You will not be paid if an Evaluation is not submitted timely.

CONDUCTING THE HEARING

Nature of the Proceeding

Cases to be heard by the arbitrators are there by order of the Court pursuant to Superior Court Civil Rule 16.1.

Unless waived by all parties, witnesses' testimony is to be under oath or affirmation . Attorneys in Delaware may perform such notarial acts. (See: 29 Del. C. § 4323.)

The arbitrator has the authority to establish any and all guidelines for conducting the hearing, including establishing time constraints, the form of evidence presented, and, limiting the number of witnesses that may testify.

Hearing Environment

As arbitrator, you are serving as an appointee of the Superior Court. All discussions and proceedings are to be conducted with the same decorum befitting the Court. In many cases, the arbitration hearing will be a citizen's only contact with the Court. A good impression is important.

Do not permit smoking, drinking coffee, tea, soda, etc., or eating at the hearing. Do not address the parties on a first-name basis. Dress as you would when in Court.

Opening the Hearing

A brief preliminary conference with counsel and parties in which the arbitrator is free to ask questions, affords the arbitrator a good and logical opportunity to identify and define the essential issues in the case; to establish any facts not in dispute; to clarify existing stipulations and understandings; to raise and resolve potential procedural and evidentiary problems; and to lay down any special ground rules in that particular case.

Opening statements by parties or their counsel should include an estimate as to the value of the case. This may help you later to frame a fair decision, one that is acceptable to both parties.

The arbitration hearing is not to be recorded or transcribed unless a party wishes to do so at their own expense with ten (10) days prior written notice.

It is the arbitrator's duty to ascertain that all parties are present in person or by representatives authorized to bind them in compliance. The arbitration may proceed in the absence of any party who fails to appear, after notice, but an award of damages cannot be based solely upon the failure of a party to appear; except, where a claimant, after notice, fails to appear without just cause, the arbitrator may enter a decision against the claimant without a hearing.

Each party and each attorney, unless excused by the arbitrator, must appear and participate in the arbitration hearing. A party who without being excused, fails to appear at an arbitration hearing is not entitled to demand a trial de novo, except upon payment of the total arbitrator's fee and all Court costs incurred to date. Failure to appear and participate by any person whose attendance is required will subject the offender to sanctions under Civil Rule 37(d) of the Superior Court Civil Rules.

Hearing Procedure

While conducting the hearing, the arbitrator is bound by the Rules of Civil Procedure as to the attendance of witnesses and production of documents.

The Delaware Uniform Rules of Evidence are to be used as a guide to the admissibility of evidence itself. Hearsay is admissible. Since the objection will go to the weight and not the to the admissibility of the evidence, most evidence will be allowed.

Rely upon documentary evidence. Police reports, medical reports, life expectancy tables, and written reports and statements from both experts and fact witnesses should be utilized. Witness testimony, other than by parties, is discouraged.

All exhibits presented at the hearing should be delivered to opposing parties and the arbitrator at least ten (10) days prior to the hearing or such exhibits may be refused admission into evidence by the arbitrator. However, the general rule is to allow the admission of most exhibits. Exhibits delivered to opposing parties ten (10) days prior to the hearing are admitted without formal proof unless opposing counsel notifies counsel five (5) days prior to the hearing that an issue concerning the authenticity of the exhibit is to be raised.

Any physical evidence may be inspected by the arbitrator at any time, regardless of the presence of the parties or counsel.

The arbitrator should attempt to reserve any questions until counsel and parties have presented their cases. Refrain from taking over the hearing.

A litigant may proceed in arbitration pro se and in forma pauperis in the same manner and with the same rights and responsibilities as in a trial court.

Statues, court rules and legal principles relating to the authorized practice of law apply in arbitration hearings as in court trials. The arbitrator may admit an out of state attorney pro hac vice for the purposes of the arbitration only.

An arbitrator may request and should allow closing arguments for the arbitrator's own benefit and that of the litigants, who may gain a better understanding of their positions and may thereby be more willing to accept the arbitrator's judgment and not seek a trial de novo.

A hearing may be adjourned for not more than ten (10) days pursuant to Rule 16.1 (k) (8).

THE AWARD

Promptness

After the hearing, you must issue an Arbitration Order to the Court, with copies to all parties within five (5) business days of the hearing.

Form of Award

Use the Arbitrator's Order Form.

Complete and return the Arbitrator's Evaluation Form along with the Court's original of the Arbitrator's Order.

Arbitrator as Judge and Jury

An arbitrator's award should be based upon what the arbitrator as the sole juror would have determined the facts to be in a verdict and the arbitrator's application of the law to the facts as a judge would apply them in a non-jury trial.

The arbitrator should review all pleadings before making a decision.

Do not give a small award to avoid an appeal if you feel the facts do not support a finding of liability.

Do not discuss your decision with others.

Costs

The arbitrator will be governed by the law and Rules of Civil Procedure in determining if costs and interest should be included in the award.

The arbitrator's fee is not considered part of court cost which can be awarded.

Arbitrator's Fee

The arbitrator's fee for a hearing and order is $300, regardless of the amount of time expended by the arbitrator. However, the parties may stipulate to a greater amount and pay the arbitrator accordingly.

SUGGESTIONS FOR COUNSEL

Notify the civil case manager of all changes of address.

Pay your portion of the arbitrator's fee as soon as you receive your bill. Failure to do so may result in suspension of filing privileges in Superior Court.

Familiarize yourself with Rule 16.1 and apply the arbitration rules and procedure toward achieving the goals defined by the authors of the Rule.

The case Civil Action Number (C.A.), followed by the judge's initials, and the word "Arbitration" must appear on all documents, correspondence, and checks for fees that are sent to the Prothonotary's Office.

If there is a conflict of interest with the arbitrator, or if any legitimate basis exists for the arbitrator to be replaced, make that fact known immediately to the civil case manager so as not to unduly delay the hearing.

Stipulations in Arbitration

After the last responsive pleading is filed, there is a ten (10) business day waiting period built into the Rule which allows parties to stipulate to an arbitrator of their choosing. The Court encourages stipulation.

The arbitration process allows the parties and their counsel to incorporate any agreement into the record through the use of stipulations. The only limitations are actions such as motions to bypass arbitration or to withdraw as counsel, which require judicial approval in accordance with the Rules of Civil Procedure.

A Stipulation of Dismissal is required for all cases which settle prior to an arbitration hearing.

An Arbitrator's Order does not automatically become a judgment of the Court upon the expiration of the 20 day de novo time period. It is necessary for a party to make a motion for entry of an Order of Judgment. Rule 16.1 (k)(11)(C).

Make sure all stipulations have an order line or page attached. The order line can be signed by the arbitrator pursuant to the Civil Motions in Arbitration Cases.

Confer with opposing counsel/party before any hearing in a good faith effort to agree upon everything not in genuine dispute, so as to limit the evidence to be presented at the hearing. The hearing should be as short and concise as the facts allow.

Discuss the arbitration rules and procedures with your clients, doctors and witnesses so that they will understand the objectives of the program, the seriousness of the hearing, and the time constraints imposed. An award can be entered by the arbitrator against an absent party.

Remember that the Rules of Evidence do not govern, but serve as a guide to ensure fairness and full development of the facts. The arbitrator will consider all the evidence, some of which could be incompetent in a trial, and will give it the weight it deserves.

A prior demand for a jury trial does not preserve a right to a trial de novo, which must be specifically demanded pursuant to Rule 16 (c)(8)(A).

The arbitrator should be treated with the same degree of respect as a trial judge. It is preferable to address the arbitrator as Ms./Mrs./Mr. Arbitrator.

No ex parte communications with the arbitrator assigned to the case are permitted.

The arbitrator acts for the Judge. The judicial case managers and the personnel directing arbitration, act as support staff and will serve in arbitration in the same manner as if the case were being tried in Court.