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  Civil Rule 16

Alternative Dispute Resolution in Superior Court of Delaware
History of ADR Program in the Court

In 1987, Superior Court officially adopted a trial Alternative Dispute Resolution (ADR) Program. The program demonstrated its success and met its initial goals which resulted in Superior Court's Administrative Order on ADR, effective on April 10, 1991. Since that time, the Court has continued to expand its ADR Program to reduce delay, to make the court process more accessible to the public, and to improve predictability in calendar management. Both the Court and the Bar have worked diligently, in a cooperative effort, to develop processes to manage and monitor pending civil cases as well as to develop and implement alternative methods of dispute resolution.

Effective January 1, 1992, the Court adopted Civil Rule 16.2 which established an ADR Voluntary Mediation Program in Superior Court. Rule 16.2 was to be in effect for one year, at which time the Superior Court was to review the process and make recommendations on the possible permanent addition of court mediation to its established ADR Program. The one year mediation program was designed and implemented as a pilot project in New Castle County. Based on its success and the subsequent steady increase in the referral of pending cases to the mediation program, Rule 16.2 became permanent on January 29, 1993.

In its continued effort to improve and expand the alternative dispute resolution program, the Court and the Delaware Bar Association's ADR Section, jointly reviewed Civil Rules 16.1 and 16.2 and recommended that Rule changes. Subsequently, the two rules were merged into one rule and the ADR Program was expanded to include an additional third alternative ADR process, Neutral Assessment. The Court's Neutral Assessment form is frequently called Neutral Evaluation, Early Neutral Evaluation or Case Evaluation in other jurisdictions. Effective July 1, 2002, the Court's multidoor ADR Program was merged into one rule, Civil Rule 16.1. (Rule 16.2 was deleted.)

Amended Civil Rule 16 Implemented in 2008

On March 1, 2008, Superior Court's Civil Rules changed to require people who file civil suits Civil Rule 16. [Rule 16.1 was repealed.]

Before the change went into effect, cases involving less then $100,000 were subject to a practice called alternative dispute resolution, in which the disputing parties tried to resolve the lawsuit without a trial. Usually, the disputing parties would use a practice called arbitration, in which a third, neutral party decided the case. This decision could or could not be binding.

Proceedings often were delayed by scheduling conflicts among attorneys. This in turn prevented litigants from resolving their issues. Under the change, judges will assign schedules in which the dispute resolutions must take place. This will apply to almost all civil lawsuits.

To help resolve the disputes, attorneys use Arbitration, which many attorneys have used and can be compared to a mini-trial; Mediation, in which a neutral party helps settle the case by offering possible solutions; or Neutral Assessment, in which the third party evaluates the case for the litigants and reports what would work.

Cases exempt from the rule include mortgage foreclosure, replevin (recovery of property wrongly taken) and wage attachments. It is estimated that more than 1,000 cases per year will now be required to go into a form of alternative dispute resolution.

The Court expected the majority of these cases will go initially to mediation. While the disputing parties may decide what plan they want to use to resolve their case, the court will assign mediation if the litigants cannot decide. These alternative methods were designed to clear the backlog of civil cases and allow the court to focus its limited resources on more complex matters, that do not easily lend themselves to alternative resolution, in a timely manner. The new rule also allows the court to set deadlines in an attempt to dispose of the case more efficiently; something that was not happening under the previous rule.
The Processes:
  Arbitration: Arbitration is a process by which an impartial arbitrator hears both sides of a controversy and renders a fair decision based on the law. If the parties stipulate in writing, the decision will be binding. Arbitration may be mandatory or by agreement.
  Mediation: Mediation is a voluntary process by which a trained neutral facilitates the parties in reaching a mutually acceptable resolution of a controversy. The mediation includes all contacts between the mediator and any party or parties, until a resolution is agreed to, the parties discharge the mediator, or the mediator finds the parties cannot agree.
  Neutral Assessment: Neutral assessment is a voluntary process by which a highly experienced neutral gives a non-binding, reasoned, oral or written evaluation of a controversy, on its merits, to the parties. The neutral assessor may use mediation techniques to aid the parties in reaching a settlement and may prepare a binding settlement agreement, if the parties consent.