Mediation in the Courts of Delaware: Much Larger Role than Ever Before

Mediation is a process by which parties to a dispute use a neutral party to facilitate a mutually agreeable resolution to their conflict. It is a confidential process in which the mediator, a third- party neutral, directs settlement discussions, but does not render a judgment on any issue in dispute. The mediator helps the parties reach their own negotiated settlement by holding joint sessions with all parties present followed by caucuses with each party individually, during which issues are defined, emotions are defused, and potential resolutions are discussed. Mediation is a non-adversarial way to resolve conflicts, including lawsuits.

The mediation process is valuable because it brings a knowledgeable, neutral person into a dispute to provide a forum in which a party can state his/her grievance against the other party as well as reveal confidentially to the mediator just what he or she needs in order to settle. Because the sessions are totally confidential, parties can feel comfortable discussing their cases with candor. The mediators can contribute by realistically assessing the strengths and weaknesses of each party’s case and the reasonableness of proposed settlements.

Recently, the Delaware Superior Court and Court of Common Pleas changed their rules. Previously, most cases were required by those Courts to go through non-binding arbitration soon after a lawsuit was filed. As a result of the rule change, the Court now orders all cases to “Alternative Dispute Resolution,” and requires the parties to select the timing and the process. The parties can still select from:

• Binding or non-binding arbitration, where the parties submit evidence to a neutral arbitrator who decides the case acting as judge and jury.
• “Neutral assessment” a process by which an experienced neutral assessor gives a non-binding, reasoned oral or written evaluation of a controversy, on its merits, to the parties
• Mediators are the catalysts for the talks. They make no decisions, issue no awards, make no recommendations to the judge, and do not determine who wins or loses. Mediators make decisions only about the process and the sequence of the discussions, not their substance. The role of the mediator is to listen, ask questions, and find common areas of agreement. The disputing parties decide the outcome of the talks, including whether or not to reach an agreement.

Now, however, if the parties do not agree upon an alternative dispute resolution process, they will be ordered to mediation which must be conducted by a specified date. The new rules allow the court to impose penalties upon a party who does not mediate in good faith.

Mediation at MacElree Harvey

MacElree Harvey has certified mediators available in all three of its offices.

• West Chester, PA – John McKenna, Mary Ann Rossi, Harry DiDonato
• Kennett Square, PA – Mary Ann Plankinton
• Centreville, DE – Chris Curtin, Mary Ann Plankinton and Felice Kerr

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.