Alternative
Dispute Resolution in Delaware
2004 Update
By Gregory A. Shantz
Mr. Shantz will graduate Widener in May 2005 with a JD and graduated West Chester University in 2002 with a BS in Business Management. He may be reached at ShantzMan28@aol.com
Basic Principles
ADR in
2. Arbitration Program in Delaware
Arbitration is a process by which an impartial arbitrator hears both sides of a controversy and renders a fair decision based on the law. Arbitration is a more flexible program than litigation. If the parties stipulate, the decision of the arbitrator will be binding. Arbitration may be mandatory or voluntary. The arbitration program handles 75% of the Court’s civil filings, a majority of which are resolved by an arbitrator’s order. The ultimate goal of arbitration is to reach a settlement of cases early in the judicial process, tone that is just and fair for all involved and quicker and more cost efficient then litigation.
3. Mediation Program in Delaware
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 until a resolution is agreed to, the mediator is discharged, or the mediator determines a resolution cannot be reached between the parties. The mediator facilitates two or more parties in reaching a mutually acceptable resolution of a controversy. Mediator is a non-adversarial, problem solving technique that does not involve conventional fact finding or decision making. Mediation focuses on communication and negotiation techniques to create solutions to disputes that traditional litigation might not be able to produce.
4. Neutral Assessment Program in Delaware
Neutral assessment is a voluntary process by which a highly trained and experienced neutral gives a non-binding assessment and evaluation of a controversy based upon its merits. Neutral assessment enhances communication between the parties about their claims and evidence, and provides an assessment of the merits of the case by the neutral assessor. The neutral assessor provides reasoning to support their assessments. The process helps to identify key issues in dispute and assists with both discovery and motion planning. Neutral assessment can also be extremely helpful in facilitating settlement if the parties wish.
An ADR practitioner is immune from civil liability while serving as an arbitrator, mediator, or neutral assessor. The immunity does not extend, however, to cases in which the ADR practitioner conducted himself in a manner exhibiting a willful, wanton disregard for the safety, rights, or property of another.
6. ADR Practitioners in Delaware
Parties to an ADR procedure may agree by stipulation to the ADR practitioner by filing a stipulation to the Court no less then 10 days after the civil action is referred to ADR. If a stipulation is not filed, the Court will chose an ADR practitioner from lists provided by the state of Delaware. Different requirements exist for arbitrators, mediators, and neutral assessors. ADR practitioners are bound by Canon 3(C)(1) of the Delaware Judges' Code of Judicial Conduct.
7. Choice of ADR Form in Superior Court
In all civil actions subject to ADR, the Plaintiff shall chose a form of ADR and the Defendant shall accept or deny the chosen ADR form in its initial filing. In all ADR actions in Delaware, the Plaintiff selects ADR when the complaint is filed. If the Defendant does not reject the chosen ADR procedure, the Court schedules the selected ADR form. If the Defendant denies ADR, the Court schedules mandatory ADR.
Delaware Rules of Civil Procedure
1. Delaware Rules of Civil Procedure
Delaware Superior Court Rules sets forth the rules for practicing law in the Delaware court system.
2. Delaware Rule of Civil Procedure 16.1: Compulsory ADR
Delaware Superior Court Rule 16.1 sets forth the rules for compulsory ADR in Delaware. The Rule sets forth the forms of ADR, practitioners that serve as the arbitrator, the rules concerning evidence, and what cases are eligible for ADR in Delaware. In short, all civil actions are eligible for ADR with the exceptions listed below.
3. Delaware Rule of Civil Procedure 16.1: Exceptions
All cases are eligible for compulsory ADR with four exceptions: (1) a replevin, declaratory judgment, foreign or domestic attachment, interpleader, or mortgage foreclosure action; (2) any in forma pauperis action where the claims are substantially non-monetary; (3) an action to enforce a statutory penalty; and (4) an action involving a matter listed in Delaware Superior Court Rules 23 and 81(a).
Arbitrator's
Handbook to Compulsory Arbitration
Arbitration is a non-binding, mandatory ADR procedure designed to insure the expeditious diversion of amenable cases to the program in an effort to have matters resolved early in the life of a case. The ultimate goal of arbitration is to secure a just and fair determination of every action in less time and at less expense than trying those cases.
The arbitrator should read the online ADR manual. The arbitrator has complete discretion in setting the date, time, and location of the hearing. Hearings may be held on weekends or during the evening, and the average arbitration takes between 1 and 2 hours. Teleconferencing is encouraged. Rule 16.1(k) requires that a hearing be scheduled within 30 days and held within 60 days of the appointment of the arbitrator. The hearing may be held in the arbitrator’s office in any location agreeable to the parties.
Since the arbitrator does not have access to the Prothonotary's file, the parties must supply all pleadings, records, reports and other exhibits to the arbitrator, with all references to insurance coverage deleted. Pre-hearing motions are governed by the Civil Motion Practice Procedure. Arbitrators are encouraged to conduct pretrial teleconferences to resolve any problems between the pargties. If the arbitrator determines that the parties should set forth their arguments and/or legal authority, memorandums may be required to be provided to the arbitrator. The memorandum should not exceed 1 page, as briefing is not necessary. Any outstanding motions may be decided by the arbitrator before the hearing, or at the hearing itself. No written notice is required; a verbal decision is sufficient, but decisions at the hearing may be included in the Arbitrator's Order.
If a case settles prior to the hearing, the arbitrator must arrange a teleconference with all parties and use the Settlement Confirmation Letter to notify the court, within 5 days of settlement. Please be sure to copy all parties. The arbitrator must include the Arbitrator's Evaluation with the Court's copy in order to be paid for any non-hearing time. Failure to submit a timely evaluation will result in the arbitrator not being paid.
Cases are ordered to arbitration pursuant to Superior Court Civil Rule 16.1 and all witness testimony is under oath unless otherwise agreed by the parties. All of the guidelines for the arbitration are set forth by the arbitrator, including how many witnesses can testify, the time constraints, and how evidence can be introduced. The environment of the arbitration should mirror the environment of the Court; thus, the parties should not be addressed on a first-name basis and the rules of decorum followed in Court should be followed in the arbitration.
A brief conference before the arbitration begins is helpful for the arbitrator. It allows for the arbitrator to ask questions and clarify issues, facts, disputes, and stipulations. It also allows the arbitrator an opportunity to lay out the ground rules for the arbitration so that all parties are aware of how the procedure will go.
It is important to note that an arbitration is not recorded or transcribed unless a party makes arrangements to do so at their own expense. 10 days written notice is required if the arbitration will be transcribed and/or recorded.
An arbitration may proceed in a party is not present. However, an award of damages cannot be based solely upon a party’s failure to appear except where a claimant, after notice, fails to appear without just cause. In such a case, an arbitrator can enter a decision against the claimant without a hearing. Each party and each attorney must appear and participate in the arbitration, unless excused by the arbitrator. An extremely important note is that a party who fails to appear at the arbitration without being excused by the arbitrator is unable to appeal the arbitrator’s decision for a trial de novo without first paying the total arbitrator’s fee and all Court costs.
An opening statement is encouraged, and should include a value of the case. The arbitrator is bound during the arbitration by the Delaware Rules of Civil Procedure. Most evidence will be allowed by the arbitrator as any evidence objections would go to the weight and not the admissibility of the evidence. The Delaware Uniform Rules of Evidence will govern the admissibility of evidence. Hearsay is admissible in the arbitration.
Parties to the arbitration should make the most of documentary evidence and fact witnesses. The use of witness testimony, other than by parties, is discouraged. Exhibits used at the arbitration should be delivered to both opposing parties and the arbitrator at least ten days prior to the hearing. Failure to do so may be excluded from being admitted into evidence by the arbitrator. However, the general rule is to allow the admission of most exhibits. Exhibits delivered to opposing parties ten days prior to the hearing are admitted without formal proof unless opposing counsel notifies counsel five days prior to the hearing that the authenticity of the exhibit will be questioned.
An arbitrator should allow closing arguments for the benefit of not only the arbitrator but also for the benefit of the parties. The hope is that the parties may get a better understanding of their positions of the other party and thus be more willing to accept the arbitrator's judgment and not seek a trial de novo.
3. The Award
After the arbitration hearing, the arbitrator must issue an Arbitrator's Award to the Court and the parties within 5 business days. An arbitrator's award should be based upon what the arbitrator as the sole juror would have determined the facts to be in a verdict and the arbitrator's application of the law to the facts as a judge would apply them in a non-jury trial.
Provided are several miscellaneous suggestions to make ADR in Delaware easier for attorneys. They are easy, almost common sense things that must be remembered but can easily be forgotten by a busy attorney. Examples include keeping the civil case manager up to date on any address changes. Also suggested to is to familiarize yourself with the arbitration rules and procedures of Rule 16.1 and apply them towards achieving the desired goal. Also noted are important rules for correspondence, forms, documents, and checks for fees sent to the Prothonotary’s office. Rules are listed for dealing with opposing counsel as well as rules on ex parte communication. Stipulations in arbitrations are encouraged, and rules and recommendations are listed, as well as links to relevant rules and forms.
Delaware
Arbitration Guidelines
Arbitration is designed as a speedy alternative to litigation. It provides each party an opportunity to present their evidence and argue their case at a structured proceeding that is less expensive and quicker then a jury trial. The arbitrator has expertise in the substantive area of the dispute.
Stage 1: The Arbitration Process
Before doing anything else, an attorney must read the Superior
Court ADR Manual. If a case goes to
arbitration by agreement of the parties, arbitration must be checked on the Civil
Case Information Statement (CIS). It
is important to remember that the parties in an arbitration if unhappy with the
findings of the arbitrator, have absolute trial de novo appeal
rights. Parties must agree to an
arbitrator by signed Stipulation
within ten business days of the case being referred to arbitration. For personal injury cases, arbitrators should
be selected from the approved Arbitration—Personal
Injury List. As soon as an
arbitrator is appointed, he or she must contact the parties immediately to
schedule a hearing a mutually convenient time.
The hearing must be held within 60 days of the arbitrator’s
appointment. What is convenient is that
the hearing may be held at any time; the parties are not restricted by court
hours. The hearing may be held in the
evening or on weekends and may be held in the arbitrator’s office or in another
location acceptable to the parties..
Again, ex parte communications are invalid. If the parties do not come to an agreement on
the hearing date, the arbitrator will pick the date and give 10 days written
notice of the hearing to the parties.
The arbitrator will not review the Prothonotary’s file on the case;
rather, the parties must deliver all initial pleadings and exhibits to the
arbitrator. The arbitrator will find out
if any pre-trial issues must be resolved and, if he or she wishes, may chose to
conduct a hearing to resolve those pre-trial issues. It is extremely important to note that nay
party who does not appear and participate at the arbitration hearing, without
being excused by the arbitrator, waives their right to a trial de novo
on all issues except upon payment of the total arbitrator’s fee and all court
costs incurred to date. The hearing
should take no more then 2 hours.
Delaware
arbitrators are all members of the Delaware bar who have been in practice more
then 5 years, volunteer members, and retired members and retired judges of the
Delaware Judiciary. Personal injury
arbitrators have certified that they have experience in personal
injury litigation. With few
exceptions, the arbitrator will receive from the Prothonotary a minimum of 2
hours pay at $150 an hour for a total of $300.
Each party will pay their share of the arbitrator’s fee to the
Prothonotary within 20 days of the appointment of the arbitrator. The arbitrator’s fee is not considered part
of the court costs which can be awarded by the arbitrator.
The Delaware
Rules of Evidence will be used as a guide for admissibility of
evidence. Rules of Evidence are
construed liberally at arbitration; most evidence will be allowed and hearsay
is admissible. Documentary evidence will
be preferred over the testimony of witnesses.
Copies of all exhibits should be delivered to the arbitrator as well as
the opposing party within 10 days of the arbitration. Failure to do so can result in exclusion of
the exhibits from the arbitration.
Stage
4: The Arbitration Hearing
An arbitration is Delaware should be conducted with the same decorum and respect as would expected in court. The arbitrator is serving as an appointee of the Superior Court, and should be treated as such. Listed are important rules to follow while conducting arbitration. The arbitrator will issue an original Arbitrator's Order to the Court and all parties within 5 days of the hearing. Along with the order, the arbitrator will return the Court's copy of the Arbitrator's Order along with the Arbitration Evaluation to the Prothonotary. If a party is interested in appealing an arbitrator’s decision, the decision must be made quickly. If neither party files a written Demand for a Trial De Novo within twenty (20) days of the filing of the order, the case will either be dismissed or upon proper motion of a party, the order may be entered as a Judgment of the Court.
Also available are all necessary Delaware Arbitration Forms.
Mediation is a dispute resolution program under which a trained neutral third party, a mediator, assists the parties in reaching a settlement.
Stage 1: The Mediation Process
The first step to the mediation process in Delaware is to read the Superior Court ADR Manual. Participation in mediation in Delaware is strictly voluntary; there is no mandatory mediation. The mediator’s decision is binding upon the parties only if they choose it to be. The mediator's role is to clarify misunderstandings and ambiguities, to provide a new perspective on disputed issues, and to explore options for mutual wins as well as realistic tradeoffs. The mediator may be selected by the Superior Court’s Mediator's List by agreement of the parties with a Stipulation signed and filed within 10 business days after the civil action is referred to ADR. The Court will select the mediator from an approved list if a stipulation is not filed. After a mediator is selected, mediation will be scheduled within 30 days and held within 120 days of the scheduling. Both parties to the mediation are required to serve upon the mediator a confidential Mediation Conference Statement 10 days prior to the scheduled mediation. Before the mediation conference begins, the parties, their counsel, and the mediator all must sign the Agreement to Mediate, which declares the confidentiality of the mediation conference and states the rights and obligations of the parties.
Mediators in Delaware are members of the Delaware Bar who have completed at least 25 hours of training in conflict resolution techniques and have been approved by the President Judge of the Court. The mediator can be appointed from the Court’s Mediator's List or by agreement of the parties. The mediator will receive from the Prothonotary a minimum of 2 hours pay at $150 an hour for a total of $300. Each party will pay their share of the arbitrator’s fee to the Prothonotary within 20 days of the appointment of the arbitrator.
Stage 3: The Mediation Session
Mediation conferences are very informal and typically last between 1 and 4 hours. The mediator assists the parties to reach a conclusion that is acceptable to both parties. The mediator does not impose a decision upon the parties but instead attempts to help them to reach one on their own. The mediator can, however, terminate the mediation if he or she feels that an agreement cannot be reached. The termination is deemed to be without prejudice to either party. If the parties reach an agreement, the Settlement Agreement must be signed by all the parties, the parties' counsel, and the mediator. Once the agreement is signed, it is binding upon both parties and is considered to be part of the record. In addition, regardless of whether the parties reach an agreement, the mediator must file a Mediator's Report and a Mediation Evaluation with the Prothonotary.
Also available are all necessary Delaware Mediation Forms.
Delaware
Neutral Assessment Guidelines
Neutral assessment is an ADR program designed to get civil cases to settle while they are still in the pre-trial stage. Neutral assessment is a voluntary system that has been extremely successful in settling cases before they reach the level of costly, drawn-out litigation.
Stage 1: The Neutral Assessment Process
The neutral assessment is binding only by mutual agreement of the parties. Neutral assessment uses an independent, neutral assessor to evaluate and determine a party’s positions and chances of success at trial. A neutral assessor may be selected from the approved Neutral Assessors List with a signed Stipulation by both parties within 10 days of the case being referred to ADR. If a stipulation is not the signed, the Court will select a neutral assessor. The neutral assessment must be scheduled within 30 days of appointment or stipulation, and held with 120 days. Once neutral assessment has began agreed to, each party, as well as at least 1 attorney for each party, must be present at the neutral assessment hearing.
A teleconference should be scheduled between the neutral assessor and the parties before the hearing to review such matters as scheduling, procedures, and the nature of the case. A teleconference may also be scheduled following the submission of the neutral assessment statements.
The parties must serve upon the neutral assessor a confidential Neutral Assessment Statement 10 days before the scheduled neutral assessment hearing.
Neutral assessors are members of the Delaware Bar registered with and approved by the ADR Section of The Delaware State Bar Association. A neutral assessor is an impartial expert who evaluates parties’ claims and renders an opinion regarding the case and each party’s likelihood of success, as well as a recommendation for settlement.
A neutral assessor receives a minimum payment of 2 hours at $150 per hour. Each party must pay their share of the neutral assessor’s fee within 20 days of the notice of appointment of the neutral assessor. A neutral assessor may seek sanctions against a party who fails to pay the neutral assessor’s fee.
Stage 3: Neutral Assessment Hearing
In a confidential session, the parties and their attorneys present summaries of their case to a neutral assessor. The neutral attorney, an experienced individual with subject matter expertise, then provides a non-binding evaluation of the case. The neutral assessor can also, if requested, help provide case-planning advice, identify areas of agreement, and offer settlement advice.
A neutral assessment hearing should be limited to no more then 2 hours, unless the parties stipulate to a longer hearing or circumstances warrant a longer amount of time.
Regardless of whether the parties reach a settlement, the Neutral Assessor's Report and the Neutral Assessor's Evaluation must be filed with the Prothonotary’s office. A copy of the neutral assessor’s report must be served upon the parties. If a settlement is not reached, the neutral assessor must advise the Prothonotary and the parties that the neutral assessment was not successful and the case will proceed as though a written demand for a trial de novo was filed by one of the parties.
Overview of ADR Processes
in the District of Delaware
This United States Courts site provides an overview of ADR procedures in Delaware. The ADR program in the District of Delaware uses a Magistrate Judge to conduct mediation, settlement conferences, arbitrations, and neutral evaluations on a case-by-case basis. All civil cases, except those filed by prisoners, are eligible for ADR. A case goes to ADR upon stipulation of the parties or if ordered to ADR by the District Judge at the initial scheduling conference.
Each party must provide the Magistrate Judge with a concise memorandum setting forth the party’s positions and the issues to be resolved at ADR not less then 10 days before the scheduled conference. This memorandum is not shared with the opposing party, does not become part of the record, and is not given to the trial judge should the case go to trial. It must contain: a description of the parties; if they are related and, if so, how; a brief factual background including any facts not in dispute; a brief summary of the law including applicable statutes and cases; an honest discussion of the party’s claims or defenses, including strengths and weaknesses; a brief discussion of prior negotiation or settlement conferences, including an assessment of why settlement has not been reached; any proposed terms a party wishes discussed or submitted; and a description of how the party believes the Court may be able to help reach an agreement. Documents or other evidence may be submitted, but the quantity of those exhibits is limited.
A mediation session is scheduled to last about eight hours. Parties or their representatives and trial counsel are required to attend all mediation sessions. Parties who fail top appear may be sanctioned, and a Rule To Show Cause may be issued for non-appearance. The mediation takes place at the courthouse, and the Magistrate Judge determines the length and timing of all sessions and the order in which issues are presented.
The mediation record does not generally become part of the record. If the first mediation conference does not reach a resolution, the parties have the option to conduct further mediation or other forms of ADR, if appropriate. If settlement is reached on all issues, a written agreement is drafted or a record is created by a court reporter. If settlement is reached only on some but not all issues, the parties must file a stipulation as to those issues and identify those issues that are still in dispute.
All information disclosed to the Magistrate Judge during the mediation session is not disclosed to the other party without consent. All mediation proceedings are confidential, and are not admissible as evidence in any other proceeding. Mediation sessions cannot be recorded without the prior consent of all parties as well as the Magistrate Judge.
The certification course consists of 2 parts. The first part covers methodology and skills, and covers 22 hours in 3 days. The second part consists of a post-training session and is 3 hours. The course is offered in Centreville and Wilmington, Delaware. The trainers for the certification course are different for parts 1 and 2. Part 1 of the course is taught by experienced trainers who have an active history with the ABA and its ADR Section, while the Court teaches part 2. The cost of the training is $525 and covers course costs, including text book, continental breakfasts, beverages, and lunches.
University of Delaware Conflict
Resolution Program
The Conflict Resolution Program is part of the University of Delaware’s Institute for Public Administration. This program has a goal of organizational and transformational change in both the public and private sector. Designed to inform and instruct individuals, groups, and organizations on effective communication, which is done through teaching. Staff members at the Conflict Resolution Program are all trained mediators who seek to provide a “win-win” situation for all parties involved. Their work includes mediation training, mediating public and private disputes, and short and long-term planning.
Delaware Federation for Dispute Resolution
The Delaware Federation for Dispute Resolution is a group that aims to actively advance the understanding, acceptance, and appropriate use of dispute resolution options. Sponsored events include ADR Week, support groups for ADR practitioners, retreats, and tele-forums. Membership is available to utilize the programs administered by DFDR. The site also includes links to ADR resources not only in Delaware but also nationally.
Delaware ADR Forms
- Civil Case Information Statement (CIS)
- Certification of Value (Form 32)
- Interrogatories - Personal Injury Litigation (Form 30)
- Certification of Unknown Defendant (Form 33)
- Request for Physical Exam (Form 34)
- Agreement of Stipulation (Form 35)
- Appointment Letter
- Hearing Notice Form Letter
- Settlement Confirmation Letter
- Arbitrators Order
- Arbitration Evaluation
- Trial De Novo Request Form
- Order of Judgment