Rule 138.Commencement of Arbitration

Arbitration begins the way mediation does: a petition to the Prothonotary, filed with the required fee and signed by Delaware counsel under Rule 90.1(a), with enough copies for delivery to every party unless the Court says otherwise. The Prothonotary sends the petition out via next business-day delivery, to whoever the parties' agreement names for notice or, if it's silent, to each party's principal place of business or residence, using addresses the petitioning party provides.

The petition has to state the nature of the dispute, the names and addresses of the other parties, and the claims and remedy sought, along with the same eligibility statements mediation petitions carry: that the parties consented to arbitrate, that the Superior Court would have subject matter jurisdiction, that at least one party is a business entity with the required Delaware connection or the dispute is governed by Delaware law, and that no party is a consumer. A petition involving solely a monetary claim also states the amount in controversy. Confidentiality tracks mediation too, with one difference — the petition stays off the public docket and confidential unless the case later becomes the subject of an appeal, at which point the record gets filed with the Supreme Court under that court's rules.

Once the Court receives the petition, it appoints an Arbitrator, who contacts the parties' counsel to set the preliminary conference within 10 days of the arbitration's commencement, unless the parties and Arbitrator agree to push that date back. The preliminary hearing follows as soon as practicable, and the Arbitrator issues a scheduling order promptly after that hearing. The Arbitrator sets the date, time, and place of the arbitration hearing at the preliminary hearing itself, and that hearing generally happens no later than 90 days after the Court receives the petition.

Before the hearing, the parties exchange whatever information is necessary for them to prepare and for the Arbitrator to understand the dispute, unless they agree, with the Arbitrator's approval, to skip that exchange. They try to agree on the scope of that exchange first — which can include depositions — and present any agreement to the Arbitrator at the preliminary hearing or soon after; if they can't agree, the Arbitrator decides what exchange is necessary.