Alternative Dispute Resolution

Guidelines for Arbitration in Superior Court

Arbitration Process
The Arbitrator
Arbitration Scheduling
Arbitration Hearing
Arbitration Order
Arbitration Requirement

Arbitration Forms (Forms are sample format; not required Court forms.)

Arbitration Process

  1. Plaintiff’s counsel can designate any civil action, except certain matters as set forth in Rule 16.1(b), where the plaintiff agrees to limit the jurisdictional amount to $50,000, trial is available, monetary damages are sought and non-monetary claims are nominal, as a non-binding arbitration case. (R. 16.1(a)). The following civil actions are not subject to Rule 16.1 arbitration: (i) an action involving a matter listed in Superior Court Rules 23 or 81(a); (ii) a replevin, declaratory judgment, foreign or domestic attachment; interpleader, summary proceedings, or mortgage foreclosure action; (iii) any in forma pauperis action where the claims are substantially non-monetary; and (iv) an action to enforce a statutory penalty. (R. 16.1(b)).

  2. Plaintiff must indicate on the Case Information Sheet that the matter is a non-binding arbitration case. (R. 16.1 (a)). Exhibit 1.

  3. Plaintiff and Defendant must provide responsive answers to the Form 30 Interrogatories. (R. 16.1(d)).

  4. All parties alleging personal injuries must provide a HIPPA compliant medical authorization to the defending party within five (5) days of the filing of the Answer to the Complaint. Defendant shall notify and provide copies of all records received to the party who has alleged the personal injuries. All parties who receive copies of the records, except for the party who has alleged the personal injuries, shall share pro rata in the costs of obtaining and copying such records. (R. 16.1(d)(3)). The Court will not track the time frames, ascertain the appropriate pro rata amount or monitor the delivery of any required payments.

  5. Plaintiff must provide the initial medical records and report required by Rule 3(h) within five (5) days of the entry of appearance by defendant. (R. 16.1(d)(4)).

  6. All expert reports that exist at the time of the filing of the Complaint shall be provided to the opposing party within five (5) days after service of the Answer under Rule 5(b). Expert reports received thereafter shall be provided to the opposing party within five (5) days of receipt. (R. 16.1(d)(5)).

The Arbitrator

  1. The parties must agree to an arbitrator within 20 days of the close of all initial pleadings. (R. 16.1(f)). “Close of all initial pleadings” includes the answer, any cross-claims or counter-claim and responses thereto. The “close of all pleadings” will also include the disposition of motions pertaining to defendants who do not appear. However, parties may agree to proceed prior to a final disposition on parties who did not appear.

  2. Notice of Selection of Arbitrator. Exhibit 2. Plaintiff shall file the Notice of Selection of Arbitrator form. This form will provide notice to the Court and others to proceed with scheduling the arbitration. Also, it will provide notice to File and Serve of the selected arbitrator in each case. The selected arbitrator will not incur filing fees on the case where he or she is identified on the Notice of Selection of Arbitration form.

  3. Motion to be heard by the Arbitrator. Certain motions may be heard by the Arbitrator. (R. 16.1 (g)). The Notice of Motion to be Heard by Arbitrator form (Exhibit 3) should be filed with any motion where the parties have determined that the Arbitrator will hear and decide the motion. This notice page will assist Prothonotary staff to distinguish those motions from motions that must be scheduled before a judicial officer.

Arbitration Scheduling

  1. The arbitration hearing must proceed within 120 days of the close of the initial pleadings. (R. 16.1(h)(1)).

  2. A Case Scheduling Order will be entered in the case by the assigned Judge in accord with that Judge’s preferences. (R. 16.1(h)(2)). The Case Scheduling Order will provide for 120 days from the close of the initial pleadings for arbitration to take place. The Case Scheduling Order will control the ongoing case. It is the responsibility of counsel to track the 120 days from the close of initial pleadings and keep the case on track in accordance with the Case Scheduling Order. Additionally, it is the responsibility of parties to file a motion to bring any conflicts to the Court’s attention.

Arbitration Hearing

  1. The arbitration hearing should be scheduled and held as soon as practicable within the time provided by this Rule. (R. 16.1(k)).

  2. Unless the arbitration date is agreed upon, the Arbitrator must give at least ten (10) days written notice of the hearing to all parties. (R. 16.1(k)(1)).

  3. Each party and each attorney shall appear and participate in the hearing unless excused by the Arbitrator. (R. 16.1(k)(10)). The arbitration may proceed in the absence of any party, after notice, but an award of damages shall not be based solely upon the failure of a party to appear. (R. 16.1(k)(3)).

  4. A party, who without being excused, fails to appear at the hearing shall not be entitled to demand a trial de novo, except upon the payment of the entire Arbitrator’s fee and all Court costs incurred by all parties to date. (R. 16.1(k)(A)).

  5. If a person, whose attendance is required at the hearing, fails to appear and participate, without just cause, that person shall be subject to sanctions under Superior Court Civil Rule 37(d). (R. 16.1(k)(10)(B)).

Arbitration Order

  1. The Arbitrator shall certify as part of the Arbitration Order that he or she has not examined and is not familiar with the amount of insurance coverage unless such was necessary for the arbitration decision and is not disqualified under Canon 3(C)(1) of the Delaware Judge’s Code of Judicial Conduct. (R. 16.1(l)).

  2. The Arbitrator shall electronically file his or her arbitration order and send copies to all parties within five (5) days following the close of the arbitration hearing. (R. 16.1(l)(1)).

  3. Exhibit 4 is a form Arbitration Order which should be utilized.

  4. Within 20 days of the electronic filing of the Arbitration Order any party may electronically file a written demand for trial de novo. (R. 16.1(m)). Exhibit 5 is a form Demand for Trial De Novo which should be utilized.

  5. After the time for requesting a trial de novo has expired, the Court may enter the arbitration order as an order of judgment upon motion of a party. Such judgment shall have the same force and effect as a judgment of the Court in a civil action, but shall not be subject to appeal. (R. 16.1(l)(3)).

  6. The stay of motions and discovery shall automatically terminate upon the filing of a demand for trial de novo or the placement of the case on the Court’s trial calendar following the expiration of the time allotted for arbitration. (R. 16.1(m)(1)).

  7. At the trial de novo, no evidence that there has been an arbitration proceeding, the nature or amount of the order may be admitted as evidence. Further, the conduct or outcome of the arbitration proceeding may not be considered, except that recorded testimony taken at the arbitration hearing may be used in the same manner as testimony taken at a deposition. (R. 16.1(m)(3)).

  8. If the party who demanded the trial de novo fails to obtain a jury verdict or Court judgment exclusive of interest and costs more favorable than the arbitrator’s order, that party shall be assessed the costs of arbitration and the arbitrator’s total compensation. (R. 16.1(m)(4)).

  9. If the plaintiff obtains a jury verdict or Court judgment equal to or greater than the arbitrator’s award, and the defendant demanded the trial de novo, interest shall be paid on the amount of the arbitrator’s order pursuant to 6 Del.C.§2301 beginning on the date of the order. (R. 16.1(m)(4)(A)).

  10. If the defendant obtains a defense verdict from a jury or the Court equal to or greater than the arbitrator’s award, and the plaintiff demanded the trial de novo, the defendant shall be awarded costs after the date of the arbitrator’s order, as described in Superior Court Civil Rule 68. (R. 16.1(m)(4)(B)).

Arbitration Requirement

  1. Arbitration under Rule 16.1 will satisfy the Court’s requirement that parties participate in ADR. (R. 16.1(m)(2)).

  2. Arbitrators shall have civil liability immunity unless there is bad faith with malicious intent, or in a manner exhibiting a willful, wanton disregard of the rights, safety and property of another. (R. 16.1(q)).