OVERVIEW OF MEDIATION/ADR PROCESSES
 

        The District of Delaware’s Alternative Dispute Resolution (ADR) Program uses magistrate judges to conduct mediation, settlement conferences, binding and non­binding arbitrations, early neutral evaluations and summary jury trials on a case-by-case basis. Counsel and the litigants are encouraged by the Court to explore alternative dispute resolutions with the magistrate judge assigned to the case. All civil cases, except those filed by prisoners, are eligible for ADR. During the initial Rule 16 scheduling conference, the ADR options are discussed and the district judge may include in the case management order a referral to a magistrate judge for ADR. The parties may also stipulate to ADR. 

CASE SELECTION
 

Eligible Cases:  All civil cases, except prisoner petitions and habeas proceedings, may elect to use ADR. 

Excluded Cases:  Unless otherwise assigned by a judge, prisoner and habeas petitions are excluded.

Referral Method/Notice to Parties

        During the initial Rule 16 scheduling conference, the parties are advised of the availability of ADR through the services of a magistrate judge. During that conference, the district judge will explore with the parties their interest in the ADR process. All district judges have standard provisions in their scheduling orders referring a case for ADR, which usually include contact with a magistrate judge for further discussion regarding ADR. 

Any civil action may also be referred on the Court’s own motion or by stipulation of the parties. 

 After referral has been made, the magistrate judge will notify the parties through an order as to the date and time of a teleconference to discuss the form of alternative dispute resolution to be used, the procedures to be followed, including the submission of materials for review prior to the dispute resolution conference, and the timing for that conference. Dispute resolution conferences will not be scheduled prior to the Rule 16 scheduling conference, unless referred or ordered by the district judge.

Parties may opt out of participating in the ADR process only by consent of the Court.

THE KEY FEATURES OF THE MEDIATION PROCESS

Timing for the Mediation Referral:  See above.

Timing and Nature of Submissions Required Before the Mediation Session:  The submissions by the parties are controlled by the Order Governing Mediation Conferences and Mediation Statements which is found on the Court’s website. Usually, each party must provide the magistrate judge with a concise memorandum setting forth the party’s position concerning the issues to be resolved through mediation, not less than ten (10) days prior to the mediation conference. This mediation statement does not become part of the Court record, is not exchanged among the parties or counsel (unless the parties so desire), and is not provided to the trial judge. Page limitations are imposed for the mediation statements.  

Contents of the Mediation Statement:  The mediation statements may be in memorandum or letter format. Unless otherwise ordered, mediation statements must contain the following headings and a discussion of each topic described herein: 

The Parties: provide a description of who the parties are, their relationship, if any, to each other, and by whom each party is represented, including the identity of all individuals who will be participating on behalf of a party during the mediation conference. 

Factual Background: provide a brief factual background, clearly indicating which material facts are not in dispute and which material facts remain in dispute. 

Summary of Applicable Law: provide a brief summary of the law, including applicable statutes, cases and standards. Copies of any unreported decisions (including decisions from this jurisdiction) that counsel believes are particularly relevant should be included as exhibits.

Honest Discussion of Strengths and Weaknesses: provide an honest discussion of the strengths and weaknesses of the party's claims and/or defenses.

Settlement Efforts: provide a brief description of prior settlement negotiations and discussions, including the most recent offers or demands exchanged between the parties and the reasons for rejection, and the party's assessment as to why settlement has not been reached.

Settlement Proposal: describe the party's proposed term(s) for a resolution. Identify any interests or issues not directly involved in this matter that may frustrate or further settlement. If the party has any suggestions as to how the Court may be helpful in reaching a resolution, such suggestions should also be described. 

Fees and Costs: list separately each of the following: (i) attorneys’ fees and costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith estimate of additional attorneys’ fees and costs to be incurred if this matter is not settled; and (iv) good faith estimate of additional other fees and costs to be incurred if this matter is not settled. 

In addition to addressing the topics listed above, the parties are encouraged to include other information that may be of assistance to the resolution process. 

Crucial or pertinent documents or other similar evidence or a summary of such documents may be submitted with the mediation conference statement. 

Required Participants:  Trial counsel, counsel who is familiar with the case and representatives or decisionmakers of the parties, who have full authority to act on the party’s behalf, including the authority to negotiate a resolution of the matter and to respond to developments during the mediation process, must attend. 

Full Authority: means that those participants on behalf of a party should be able to make independent decisions and have a knowledge or understanding of the dispute and/or business objectives/operations of their company to generate and consider solutions and/or be able to address the negotiation dynamics in mediation. Full authority is not just settlement authority. 

Parties who fail to appear may be subject to a rule to show cause and sanctions.

Duration of the Mediation Process:  Generally, a mediation session is scheduled to last all day, approximately eight hours. Trial counsel and the litigants are encouraged to continue the process with or without court assistance after the first session. Depending upon the case, often the first session is sufficient to determine whether the matter may be resolved through mediation. It is not uncommon, however, for a subsequent session to occur, or for the magistrate judge to continue negotiations through telephonic or e-mail discussions.

Mediation Logistics and Location:  The magistrate judge, in consultation with counsel and the litigants, establishes the time for mediation. The mediation sessions take place at the courthouse. The magistrate judge determines the length and timing of the sessions and the order in which issues are addressed.

Filing of Mediation Outcome:  Generally, the mediation outcome is not made part of the Court record. Notification is provided to the referring judge by the magistrate judge as to the outcome of the process. If the first mediation session does not resolve the case, the parties are consulted before the close of that session whether further mediation or other forms of ADR would be appropriate. The date and time of any additional mediation conferences or follow up teleconference(s) may be scheduled at that time.

If settlement is reached on all issues during the mediation conference, a written agreement in principle regarding the settlement terms may be drafted or a record of the agreement may be made through a court reporter.

If settlement is reached on some issues, a stipulation of dismissal on those issues should be filed as soon as conveniently possible, which also identifies those issues which remain. The magistrate judge retains jurisdiction over any disputes that may arise in drafting of the final settlement documents.  

Confidentiality:  Information disclosed to the magistrate judge during mediation, including the contents of any written submissions, are confidential and may not be disclosed to another party without consent of the disclosing party/side. Further, such information may not be used in the present litigation nor any other litigation, absent a court order. Violation of confidentiality may subject the violator to sanctions. 

CONTACTING CHAMBERS REGARDING MEDIATION

Any letters regarding mediation must be submitted in hard copy to the Clerk's Office in an envelope addressed to U. S. Judge Leonard P. Stark