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
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,
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 [Rule 16.1 was repealed.]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
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.
||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.