Delaware business mediation: a judge mediates, and the petition never reaches the public docket
Delaware procedure · Last verified August 17, 2026
Delaware offers business parties a mediation run by the Court itself, and its most unusual feature is what does not happen: nothing becomes public.
Rule 135(a)(4):
Confidentially. The petition and any supporting documents are considered confidential and not of public record. The Prothonotary will not include the petition as part of the public docketing system.
There is no complaint, no docket entry anyone can find, and no filing that signals a dispute exists.
Who can use it
Rule 135(a)(3) requires the petition to state a list of qualifying facts:
| The petition must state | |
|---|---|
| That all parties have consented by agreement or stipulation | |
| That the Superior Court would have subject matter jurisdiction over the business dispute | |
| That at least one party is a business entity | |
| That at least one party is a business entity formed under Delaware law or with its principal place of business in Delaware, or that the dispute is governed by Delaware law | |
| That no party is a consumer with respect to the dispute | |
| In money-only disputes, the amount in controversy |
The consumer exclusion is absolute. This track is for business-to-business disputes, and a consumer on either side takes the matter outside it.
The petition must also "identify the issues to be mediated and specify the method by which the parties shall attempt to resolve the issues", and must be signed by Delaware counsel, as defined in Rule 90.1. See admission pro hac vice in Delaware.
Getting it moving
Rule 135 builds in a fast, fixed timetable.
| Step | When |
|---|---|
| Mediator appointed | on receipt of the petition |
| Mediator sets date, time and place | within 15 days of receipt of the petition |
| Mediation conference | generally no later than 60 days after receipt |
The petition and fee go to the Prothonotary, who sends it by next day delivery to a person named in the parties' agreement to receive notice, or failing that to each party's principal place of business or residence. The petitioning party supplies the addresses.
No discovery
Rule 135(d):
Submission of Documents. There shall be no formal discovery in connection with mediation proceeding under these Rules. The Mediator may request parties to exchange or provide to the Mediator documents or other materials necessary to understand the dispute or facilitate a settlement. The parties may agree to exchange any documents or other material in the possession of the other
Nothing is compelled. The Mediator may request an exchange, and the parties may agree to one, but there is no discovery machinery behind either.
That is the trade for speed and confidentiality, and it means the value of the process depends on what the parties are willing to put in voluntarily.
Who has to be in the room
Rule 136(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.
| Required | |
|---|---|
| A representative of each party with authority to resolve the matter | |
| Delaware counsel for each party |
Sending someone who must telephone for approval does not satisfy the first requirement. And Delaware counsel must attend personally — not merely be on the papers.
Confidentiality, and its two exceptions
Rule 136(b) makes mediation conferences private proceedings, attended only by parties and their representatives unless all agree otherwise, and protects the mediator: a Mediator "may not be compelled to testify in any judicial or administrative proceeding concerning any matter relating to service as a mediator", and all memoranda and work product in a mediator's case files are confidential.
The protection extends to "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."
Two exceptions:
| Exception | |
|---|---|
| (1) | all parties agree in writing to waive confidentiality |
| (2) | the material consists of evidence otherwise subject to discovery that was not prepared specifically for the mediation |
Exception (2) is the important one to understand: pre-existing documents do not become privileged by being handed to a mediator. What is protected is what the mediation itself generates.
One thing is carved out the other way: "A mediation agreement, however, shall not be confidential unless the parties otherwise agree in writing." If you want the settlement itself confidential, say so in writing.
If it works, and if it does not
Rule 136(d) requires an agreement to be "reduced to writing and signed by the parties and the Mediator", setting out the terms and "the future responsibility of each party."
Rule 136(e) handles failure, and is careful about consequences:
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.
Three protections in one paragraph: termination is without prejudice, the Mediator has no power to adjudicate or sanction, and nothing said binds anyone absent an agreement.
Rule 136(e)(2) adds the structural safeguard: "The Mediator is ineligible to adjudicate any subsequent litigation arising from the issues identified in the petition." The judge who mediated cannot later try the case.
Rule 136(c) gives mediators civil immunity except for acts "in bad faith, with malicious intent, or in a manner exhibiting a willful, wanton disregard of the rights, safety, or property of another".
Rule 136(f): the Court is compensated by the parties on a fee schedule kept by the Prothonotary.
Where this connects
The binding counterpart is Delaware business dispute arbitration under Rules 137 to 139, where a judge or commissioner sits as Arbitrator and the award becomes an enforceable judgment.
Do not confuse either with the Rule 16.1 track, which is a different regime again — elective, non-binding, capped at $50,000, and aimed largely at personal injury cases. See Delaware mandatory non-binding arbitration.
For the litigation tracks these avoid, see Delaware Summary Proceedings for Commercial Disputes and the Delaware Complex Commercial Litigation Division.
How Delaware's business ADR tracks compare
| Mediation | Business arbitration | Rule 16.1 arbitration | |
|---|---|---|---|
| Binding | no | yes | no, subject to trial de novo |
| Neutral | a judge or commissioner | a judge or commissioner | a private arbitrator |
| On the public docket | no | no, unless appealed | yes |
| Consumers | excluded | excluded | not excluded |
| Threshold | none stated | $100,000 for money-only claims | capped at $50,000 |
| Discovery | none | Rules 26–37 apply | limited |
| Delaware counsel must attend | yes | yes | — |
A short checklist
- Check that no party is a consumer. That disqualifies the track outright.
- Confirm the Delaware connection — a Delaware entity, a Delaware principal place of business, or Delaware law governing.
- Get consent in writing before petitioning; the petition must state that all parties have consented.
- Have Delaware counsel sign the petition and attend the conference.
- Send someone with actual authority to settle.
- Expect no discovery. Decide in advance what you will exchange voluntarily.
- Do not assume pre-existing documents become confidential by being used in the mediation.
- Say in writing if you want the settlement agreement confidential — by default it is not.
Where these rules live
- Del. Super. Ct. Civ. R. 135 — Commencement of Mediation
- Del. Super. Ct. Civ. R. 136 — Mediation Conference
- Del. Super. Ct. Civ. R. 90.1 — Admission pro hac vice
- Del. Super. Ct. Civ. R. 16.1 — Mandatory non-binding arbitration
This page explains what the rules say. It isn't legal advice.