Rule 136.Mediation Conference

Rule 136(a) requires each party to send at least one representative with an interest in the issues and authority to resolve the matter, and Delaware counsel has to attend too. Rule 136(b) locks down confidentiality: only the parties and their representatives attend, unless everyone agrees otherwise; the Mediator can't be made to testify about the mediation in any judicial or administrative proceeding; the Mediator's memoranda and work product stay confidential; and any communication connected to the mediation — whether directed to the Mediator or to anyone else at the conference — stays confidential too. There are only two exceptions: the parties can waive confidentiality in writing, or the material consists of evidence that would have been subject to discovery anyway and wasn't prepared specifically for the mediation. A mediation agreement itself isn't confidential unless the parties agree in writing that it is.

Rule 136(c) protects the Mediator personally: civil immunity for anything done or left undone in connection with the mediation, unless it was done in bad faith, with malicious intent, or with willful, wanton disregard for someone's rights, safety, or property. If the parties do reach agreement, Rule 136(d) requires it in writing, signed by the parties and the Mediator, laying out the resolution and each party's future responsibilities.

If they don't reach agreement, the Mediator officially terminates the conference — without prejudice to either side in any other proceeding — and has no power to adjudicate, sanction, or penalize anyone; nothing said or done binds a party unless an agreement results. Rule 136(e)(2) also bars the Mediator from later adjudicating any litigation that grows out of the same issues. Rule 136(f) has the parties compensate the Court according to the Prothonotary's fee schedule.