Delaware State Courts
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Delaware State Courts
Alternative Dispute Resolution
Guidelines for Superior Court Mediation
  Mediation Forms (Forms are sample format; not required Court forms.)
  Mediation Process
  The Mediator
  Mediation Session
The ADR provides parties with multiple options to litigation pursuant to Superior Court Civil Rule 16. Neutral assessment is a process through which the parties may obtain an expert and neutral evaluation of the merits of their respective cases at the very initial stage of a dispute. The assessment intends to restore or facilitate communication between the parties on the basis of an independent analysis and recommendations obtained through a highly specialized neutral analysis of each particular dispute submitted to this process.
Mediation Process
The mediator's role is to clarify misunderstandings and ambiguities, to provide a new perspective on disputed issues, and to explore options for mutual wins as well as realistic tradeoffs. The mediation offers the parties a safe forum for reviewing options prior to a commitment and enables the parties to develop their own settlement terms in a mutual agreement.
Compulsory Alternative Dispute Resolution (ADR) allows the format of ADR to be agreed upon by the parties. If the parties cannot agree on the ADR format, the default format shall be mediation unless otherwise ordered by the Court. At initial filing, you may select Mediation on the Civil Case Information Statement (CIS). The mediation outcome is binding only by mutual agreement of the parties. Participants use an impartial, certified mediator to help conduct focused, amicable settlement negotiations to avoid the time, expense and risk of protracted litigation.
A mediator may be selected from the court's approved Mediator Directory by agreement of the parties with a Stipulation signed and filed with the Court not later than ten (10) business days after the civil action is referred to ADR. The Court will select the mediator from an approved list if a stipulation is not filed.
Once mediation has been agreed upon, all parties, including at least one attorney for each represented party, and an insurance adjustor possessing the authority to settle the case, if it is a personal injury case, must be present at the mediation conference.
Sanctions may be imposed for failure to participate in good faith.
The parties should serve the mediator a confidential Mediation Conference Statement (sample form) ten (10) days prior to the scheduled mediation.
Before the mediation conference begins, the parties, their counsel, and the mediator must sign a written consent to the mediation. The Agreement to Mediate (sample form) declares the confidentiality of the mediation conference and states the rights and obligations of the parties.
The Mediator
Our active mediators consist of members of the Delaware Bar and others who have completed Superior Court' s 20 hour mediation training in conflict resolution techniques as established in Administrative Directive 2009-2.
The mediator will either be appointed from the court's approved Mediator Directory by the Court or agreed upon by the parties.
The parties to the mediation pay the mediator directly.
Mediation Session
The mediation conferences are informal proceedings. Usually, mediations take only one conference meeting lasting from one (1) to four (4) hours. The mediator will assist the parties to reach a mutually acceptable resolution of their dispute through discussion and negotiation. The mediator is not permitted to impose a decision or any penalty upon the parties.
The mediator may terminate the conference if parties are unable to agree. The termination will be without prejudice to either party in any other proceeding.
If the parties reach a settlement, the Settlement Agreement (sample form) must be signed by all the parties, the parties' counsel, and the mediator. (Pro se parties are encouraged to consult with counsel prior to executing a mediation agreement.) The agreement sets forth both the settlement of issues and the future responsibilities of each party. If the parties choose to keep the terms of the agreement confidential, the mediator may file a Stipulation of Dismissal of the pending action.
The mediator must also file a Mediator's Report with the Prothonotary. The mediator also must serve copies of the Mediator's Report to each of the parties.
If the parties do not reach a settlement, the mediator must terminate the conference and must file with the Prothonotary a Mediator's Report. The mediator also must serve copies of the Mediator's Report to each of the parties, advising that the mediation was not successful and the action will proceed as though a written demand for a trial de novo was filed by a party.