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Delaware Docket Newsletter
Summer 2008


The Superior Court recently made sweeping changes to its alternative dispute resolution (ADR) requirements. The changes, which were made by amending Civil Rule 16 and rescinding prior Civil Rule 16.1, are designed to reduce the backlog of civil cases by lowering the number of cases which proceed to trial and to streamline the ADR process. While mandatory ADR was not previously required for cases in which the plaintiff’s attorney certified a case value of $100,000 or more, under the revised rule, cases are subject to compulsory ADR regardless of the value. Only certain case types – replevin, foreign and domestic attachment, statutory penalties, mortgage foreclosures, and cases with fee waivers - are exempted from this requirement. ADR may consist of arbitration (either binding or non-binding), mediation, or neutral case assessment. The choice of type of ADR is left to the parties, but if they cannot agree, mediation serves as the default unless otherwise ordered by the Court.

Changes were also made in the procedures for ADR. Under the new rule, the judge establishes a scheduling order which includes a time limit for an ADR hearing within the process. (Previously, the scheduling order was not set until after ADR so the new procedure should help to streamline the process.) Another change made by the new rule is that the “ADR practitioner” no longer needs to be an attorney. Thus, a specialist in the matter under dispute, such as a doctor in a medical malpractice case, can function as the arbitrator, mediator or neutral assessor, as agreed to by the parties. In addition, court staff time is saved under the new rules, since the parties select the ADR practitioner, who sets his or her own fee, and is paid directly by the parties rather than by the prothonotary. The new procedures are effective for cases filed starting March 1, 2008.

Similar changes, which are also effective as of March 1, 2008, were made by the Court of Common Pleas. Under the Court of Common Pleas new Rule 16, the compulsory ADR provisions do not apply to cases in which one or more party is not represented by counsel, appeals de novo from the Justice of the Peace Court, confirmation of arbitration awards, consumer debt cases, statutory penalty cases, fee waiver cases, or any other civil cases which the Court deems exempt.