(a) Participation. At least one representative of each party with an interest in the issue or issues to be mediated and with authority to resolve the matter must participate in the mediation conference. Delaware counsel, as defined in Rule 90.1(a), shall also attend the mediation conference on behalf of each party.
Rule 136.Mediation Conference
Part XVI: Rules Governing Mediation and Arbitration Proceedings for Business Disputes · Last amended August 9, 2011 · Last verified July 28, 2026
In one sentenceRule 136 requires each side to send a representative with settlement authority and Delaware counsel to the mediation conference, keeps the conference and nearly everything said in it confidential, immunizes the Mediator from civil liability absent bad faith, and puts any resulting agreement in writing.
Full Text of Rule 136
(b) Confidentially. Mediation conferences are private proceedings such that only parties and their representatives may attend, unless all parties agree otherwise. A Mediator may not be compelled to testify in any judicial or administrative proceeding concerning any matter relating to service as a mediator. All memoranda and work product contained in the case files of a mediator are confidential. Any communication made in or in connection with the mediation that relates to the controversy being mediated, whether made to the mediator or a party, or to any person if made at a mediation conference, is confidential. Such confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding with the following exceptions:
(1) Where all parties to the mediation agree in writing to waive the confidentiality, or
(2) Where the confidential materials and communications consist or statements, memoranda, materials, and other tangible evidence otherwise subject to discovery, which were not prepared specifically for use in the mediation conference. A mediation agreement, however, shall not be confidential unless the parties otherwise agree in writing.
(c) Civil Immunity. Mediators shall be immune from civil liability for or resulting from any act or omission done or made in connection with efforts to assist or facilitate a mediation, unless the 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.
(d) Mediation Agreement. If the parties involved in the mediation proceedings reach agreement with regard to the issues identified in the petition, their agreement shall be reduced to writing and signed by the parties and the Mediator. The agreement shall set forth the terms of the resolution of the issues and the future responsibility of each party.
(e) Termination of Mediation Conference.
(1) The Mediator shall officially terminate the mediation conference if the parties are unable to agree. The termination shall be without prejudice to either party in any other proceeding. The Mediator shall have no authority to make or impose any adjudication, sanction, or penalty upon the parties. No party shall be bound by anything said or done at the mediation proceeding unless an agreement is reached.
(2) The Mediator is ineligible to adjudicate any subsequent litigation arising from the issues identified in the petition.
(f) Compensation for Mediation. The Court will be compensated by the parties to the mediation in accordance with the schedule of fees maintained by the Prothonotary.
Amendment History
Added, effective Aug. 9, 2011.
Plain-English Summary
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.
Frequently Asked Questions
Who has to show up at the mediation conference?
A representative from each party with authority to resolve the matter, plus Delaware counsel, under Rule 136(a).
Is what's said during mediation confidential?
Yes, with narrow exceptions: the parties can waive confidentiality in writing, or the material is otherwise-discoverable evidence that wasn't created specifically for the mediation. Otherwise, communications, memoranda, and work product tied to the mediation stay confidential.
Can the Mediator be sued over something done during mediation?
Rule 136(c) gives Mediators civil immunity, unless the act or omission was done in bad faith, with malicious intent, or with willful, wanton disregard for someone's rights.
What happens if the mediation doesn't produce a settlement?
The Mediator officially terminates the conference without prejudice to either party. The Mediator has no authority to adjudicate or penalize, and nothing binds the parties unless they reach an actual agreement.
Can the Mediator later preside over a lawsuit about the same dispute?
No. Rule 136(e)(2) makes the Mediator ineligible to adjudicate any subsequent litigation arising from the issues identified in the petition.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
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