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SUPERIOR COURT
ALTERNATIVE DISPUTE RESOLUTION
History of Alternative Dispute Resolution (ADR) in Superior Court of Delaware
In 1987, Superior Court officially adopted a trial Alternative Dispute Resolution (ADR) Program. The program demonstrated its success and met its initial goals which resulted in Superior Court's Administrative Order on ADR, effective on April 10, 1991. Since that time, the Court has continued to expand its ADR Program to reduce delay, to make the court process more accessible to the public, and to improve predictability in calendar management. Both the Court and the Bar have worked diligently, in a cooperative effort, to develop processes to manage and monitor pending civil cases as well as to develop and implement alternative methods of dispute resolution.

Effective January 1, 1992, the Court adopted Civil Rule 16.2 which established an ADR Voluntary Mediation Program in Superior Court. Rule 16.2 was to be in effect for one year, at which time the Superior Court was to review the process and make recommendations on the possible permanent addition of court mediation to its established ADR Program. The one year mediation program was designed and implemented as a pilot project in New Castle County. Based on its success and the subsequent steady increase in the referral of pending cases to the mediation program, Rule 16.2 became permanent on January 29, 1993.

In its continued effort to improve and expand the alternative dispute resolution program, the Court and the Delaware Bar Association's ADR Section, jointly reviewed Civil Rules 16.1 and 16.2 and recommended that Rule changes. Subsequently, the two rules were merged into one rule and the ADR Program was expanded to include an additional third alternative ADR process, Neutral Assessment. The Court's Neutral Assessment form is frequently called Neutral Evaluation, Early Neutral Evaluation or Case Evaluation in other jurisdictions. Effective July 1, 2002, the Court's multidoor ADR Program was merged into one rule, Civil Rule 16.1 and deleted Rule 16.2

>Effective March 1, 2008, Superior Court adopted sweeping changes to its compulsory ADR program. Civil Rule 16.1 was repealed and Civil Rule 16 was amended to require mandatory ADR in every civil case (unless expressly excluded by the rule or by the Court).

The revision simplified the process for attorneys and the court system, including such things as the removal of trial de novo fees and the twenty-day deadlines for appeals from arbitration orders, and much more.

Early History of Alternative Dispute Resolution

Settlement has been and continues to be the primary means of resolving disputes in the United States. As a process used for facilitating settlement, mediation also has a long history. From its revival in popularity at the turn of the century, widely variant policy objectives have been espoused by supporters and opponents of mediation use.

Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in response to the disruptive conflicts between labor and management. In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. In the ensuing years, special mediation agencies, such as the Board of Mediation and Conciliation for railway labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation and Conciliation Service (1947) were formed and funded to carry out the mediation of collective bargaining disputes. Additional state labor mediation services followed. The 1913 Newlands Act and later legislation reflected the belief that stable industrial peace could be achieved through the settlement of collective bargaining disputes; settlement in turn could be advanced through conciliation, mediation, and voluntary arbitration. Mediation was not conceived as an alternative to adjudication. It was an alternative to strikes and ensuing economic disruption which occurred when unassisted settlement negotiations failed.

At about the same time, and for different reasons, varied forms of mediation for non-labor matters were introduced in the courts. When a group of lawyers and jurists spoke on the topic to an American Bar Association meeting in 1923, they were able to assess court-related conciliation programs in Cleveland, Minneapolis, North Dakota, New York City, and Milwaukee. Their advocacy for conciliation rested not on avoidance of disruption for nonparties, as in collective bargaining mediation, but rather on the cost effectiveness for the courts and parties of resolving cases through conciliation rather than adjudication. They compared legal system-speed, cost for the parties and the system, accessibility, repose, and fairness. In addition, they mentioned the tendency of conciliation to teach honorable compromise and to produce greater satisfaction among parties and witnesses. Thus, in contrast to the focus on interests of society-at-large which spurred the use of mediation in collective bargaining, supporters of these court-related programs cited objectives based primarily on the needs of the parties and the courts.

Conciliation in a different form also appeared in domestic relations courts. An outgrowth of concern about rising divorce rates in the postwar 1940's and the 1950's, the primary goal of these programs was to reduce the number of divorces by requiring efforts at reconciliation rather than to facilitate the achievement of divorces through less adversarial proceedings. These early conciliation statutes were not widely considered successful in significantly increasing the number of reconciliations and have infrequent use. Still, some have remained in force and have provided the structure for child custody mediation, which emerged much later for other reasons.

Following privately funded mediation efforts by the American Arbitration Association and others in the late 1960s, the Community Relations Service (CRS) of the United States Department of Justice initiated in 1972 a mediation program for civil rights disputes. In the ensuing years, Congress funded a CRS staff that mediated hundreds of prison, school, police-community, and other civil rights conflicts. Settlements promoting civil rights and remedies for those subjected to discrimination, thus increasing their bargaining power. The legal system's policy for community-wide civil rights disputes became promotion of settlement, not as a means to achieve less expensive dispositions than possible through adjudication, but as a means to reduce discriminatory practices and promote racial harmony.