Del. Fam. Ct. Civ. R. 16.3

(a) In any proceeding, the Court may upon motion by either party or sua sponte enter a

scheduling order that either establishes or limits the time to engage in compulsory alternative

dispute resolution (“ADR”), the format of which is to be agreed upon by the parties. Such

ADR may include, but shall not be limited to, non-binding or, if agreed to by the parties,

binding arbitration, mediation or neutral case assessment. If the parties cannot agree on the

format of ADR, the default format shall be mediation unless otherwise ordered by the Court.

Mediation as referred to in this rule is a separate process from the mediation required in

Family Court Civil Rule 16.1. Therefore, the provisions contained in this rule, including

those related to confidentiality, shall not apply to Rule 16.1 mediations.

(b) In the event the parties cannot agree on an ADR Practitioner, they shall file a joint motion

with the Court within thirty (30) days of the issuance of the scheduling order requesting that

the Court appoint an ADR Practitioner for the parties. The Court may impose sanctions upon

a party or both parties if it determines that the parties have not attempted to agree upon an

ADR Practitioner in good faith.

(c) The parties shall pay the ADR Practitioner in accordance with the allocation and amount of

fees established by the ADR Practitioner and agreed to by the parties or ordered by the Court.

The ADR Practitioner may apply to the Court for sanctions against any party who fails to

comply with the terms of engagement established by the ADR Practitioner and agreed to by

the parties. Sanctions may include, but shall not be limited to, dismissal of the action or

default judgment.

(d) The ADR Practitioner may not be called as a witness in any aspect of the litigation, or in any

proceeding relating to the litigation in which the ADR Practitioner served, unless ordered by

the Court. In addition, all ADR Practitioners, when serving as an arbitrator, mediator or

neutral assessor, shall be immune from civil liability for, or resulting from, any act or

omission done or made while engaged in ADR, unless an act or omission was made or done

in bad faith, with malicious intent, or in a manner exhibiting a willful, wanton disregard of

the rights, safety, or property of another. Each ADR Practitioner shall remain bound by any

confidentiality agreement signed by the parties and the ADR Practitioner as part of the ADR.

(e) All memoranda, work products, and other materials contained in the case files of an ADR

Practitioner or the Court related to the mediation are confidential. Any communication made

in or in connection with the mediation which relates to the controversy being mediated,

whether made to the ADR Practitioner or a party, or to any person made at a mediation

conference, is confidential. The mediation agreement shall be confidential unless the parties

otherwise agree in writing. Confidential materials and communications are not subject to

disclosure in any judicial or administrative proceeding except:

(1) Where all parties to the mediation agree in writing to waive confidentiality;

(2) In any action between the ADR Practitioner and a party to the mediation for damages

arising out of mediation; or

(3) Statements, memoranda, materials, or other tangible evidence, otherwise subject to

discovery, which were not prepared specifically for use and actually used in the

mediation conference.

(f) If a mediation is not successful, no party may use statements made during the mediation or

memoranda, materials or other tangible evidence prepared for mediation at any point in the

litigation in any way, including, without limitation, to impeach the testimony of any witness.

(g) The following definitions apply to this rule:

(1) “Arbitration” is a process by which a neutral arbitrator hears both sides of a controversy

and renders a fair decision based on the facts and the law. If the parties stipulate in

writing that the decision shall be binding, the case shall be removed from the Court’s

docket.

(2) “Mediation” is a process by which a mediator facilitates the parties in reaching a mutually

acceptable resolution of a controversy. It includes all contacts between the mediator and

any party or parties until a resolution is agreed to, the parties discharge the mediator, or

the mediator determines that the parties cannot agree.

(3) “Neutral case assessment” is 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. The neutral assessor may use mediation or arbitration techniques to aid the parties

in reaching a settlement.

(4) “ADR Practitioner” shall include the arbitrator, mediator, neutral case assessor or any

other person engaged by the parties to facilitate ADR.