Delaware mandatory non-binding arbitration: twenty days to pick an arbitrator, or you lose the track

Delaware's mandatory non-binding arbitration track is elective at the front end and unforgiving after that.

The parties must confer and select an arbitrator within twenty days of the close of initial pleadings. Miss it and the rule is blunt: "if an arbitrator is not selected within twenty (20) days, the parties may not utilize arbitration under this Rule."

At the other end, a party who demands a trial and fails to beat the arbitrator's order pays the arbitration costs and the arbitrator's entire fee.

Which cases go to arbitration

Del. Super. Ct. Civ. R. 16.1(a):

Notwithstanding and in addition to the ADR provisions contained in Rule 16, all civil actions, except those actions listed in subsection (b) hereof, in which (1) trial is available; (2) monetary damages are sought; (3) any nonmonetary claims are nominal; and (4) counsel for claimant has made an election on the Civil Case Information Sheet for mandatory non-binding arbitration (hereinafter "MNA"), are subject to mandatory non-binding arbitration. The jurisdictional authority of the arbitrator for any case in which such election has been made shall be limited to fifty thousand dollars ($50,000), exclusive of costs and interest.

"Mandatory" describes what happens once the box is ticked, not whether it is ticked. The election belongs to counsel for the claimant, and it is made at filing on the Civil Case Information Sheet — so a defendant learns of it from the paperwork rather than choosing it.

The $50,000 ceiling is the arbitrator's jurisdictional limit, not a screen on the size of the case.

Rule 16.1(b) excludes several categories, though the parties "may stipulate to a form of ADR": matters under Rules 23 and 81(a); replevin, declaratory judgment, foreign or domestic attachment, interpleader, summary proceedings, or mortgage foreclosure; an in forma pauperis action where the claims are substantially non-monetary; and an action to enforce a statutory penalty.

The front-loaded disclosure

Rule 16.1(d) requires plaintiffs and defendants to file the Rule 3(h) and 5(b) interrogatories and sworn statements simultaneously with their first filing, and adds several five-day duties in personal injury cases.

Parties alleging personal injuries must fully answer Form 30 Interrogatory Number 7, and defendants Number 6, with "a continuing obligation to update these answers as additional information becomes known."

Where a potential defendant cannot be identified at filing and counsel so certifies, 16.1(d)(1) takes the case out of arbitration for ninety days after all initial responsive pleadings, during which discovery is limited to identifying that defendant.

Discovery is narrow, and there is no medical exam

Rule 16.1(e)(2) is short and consequential:

Defendant(s) may not request a medical examination of the plaintiff prior to the arbitration hearing, but may have a medical records review performed.

A defendant on this track gets a records review, not an examining physician. That is a real difference from ordinary Delaware practice, and it is one of the trade-offs built into the shorter route.

Rule 16.1(e)(1) lets the defendant issue subpoenas duces tecum under Rule 45 for the records of health care providers, with a duty to notify all parties of records received and provide copies to the injured party. Other parties who ask for copies "shall pay a pro-rated share of the costs".

The two deadlines that matter most

Rule 16.1(f):

Selection of the arbitrator. The Parties shall confer and select an arbitrator within twenty (20) days of the filing of the close of all initial pleadings by the parties. Unless otherwise ordered by the Court, if an arbitrator is not selected within twenty (20) days, the parties may not utilize arbitration under this Rule. Counsel must confer as to arbitrators in good faith following the filing of the initial pleadings.

Rule 16.1(h)(1):

Unless otherwise ordered by the Court, an arbitration shall be held within one hundred twenty (120) days of the close of all initial pleadings by the parties.

Both clocks run from the same event — the close of all initial pleadings — so they are set the moment the last answer lands.

The twenty-day rule is the sharper one because the penalty is losing the track altogether, and because it requires agreement with your opponent. Counsel "must confer as to arbitrators in good faith".

Dispositive motions are stayed

Rule 16.1(g) gives the arbitrator everything except three things. The arbitrator hears and decides all motions except:

So a summary judgment motion does not get decided first. It waits. That reshapes the sequencing of a case on this track: the arbitration happens on the merits before any dispositive motion is heard.

The hearing

Rule 16.1(k) sets the mechanics, and several carry hard consequences.

Exhibits not delivered on time may be refused, and the arbitrator "shall consider such exhibits without formal proof" unless authenticity was challenged five days out. So the ten-day exchange does double duty: it is both a disclosure deadline and the mechanism that authenticates the documents.

Attendance is required of each party and each attorney, unless excused. Rule 16.1(k)(10)(A) attaches the penalty:

A party, who without being excused, fails to appear at an arbitration hearing shall not be entitled to demand a trial de novo, except upon payment of the total arbitrator's fee and all Court costs incurred by all parties to date.

Non-appearance does not merely risk an adverse award — it costs you the right to a trial unless you pay the arbitrator's whole fee and everyone's costs. Failure to appear without just cause also draws sanctions under Rule 37(d).

The hearing may proceed in the absence of a party who fails to appear, but "an award of damages shall not be based solely upon the failure of a party to appear."

The order, and twenty days to reject it

Rule 16.1(l)(1) requires the arbitrator to file the written order with the Prothonotary, copies to each party, within five days of the close of the hearing.

Rule 16.1(m):

Within twenty (20) days after the electronic filing of the arbitration order any party may electronically file a written demand for a trial de novo. A demand for a trial de novo is the sole remedy of any party in any action subject to arbitration under this Rule.

Twenty days, and it is "the sole remedy" — there is no appeal from the arbitrator, no motion to vacate or modify.

If nobody demands a trial, Rule 16.1(l)(2) allows any judge, on motion, to enter the order as a judgment: "A judgment so entered shall have the same force and effect of a judgment of the Court in a civil action, but shall not be subject to appeal."

Filing the demand also terminates the stay on motions and discovery automatically, and response times begin from the date of filing.

What a trial de novo costs if you lose it

Rule 16.1(m)(4) is the provision that makes the whole track work:

If the party who demands a trial de novo fails to obtain a verdict from the jury or judgment from the Court, exclusive of interests and costs, more favorable to the party than the arbitrator's order, that party shall be assessed the costs of arbitration, and the arbitrator's total compensation.

Note the comparison is "exclusive of interests and costs", so the raw verdict is measured against the raw award.

The trial itself is insulated from the arbitration. Under 16.1(m)(3) the Court "shall not admit evidence that there has been an arbitration proceeding, the nature or amount of the order", nor consider the conduct or outcome — except that recorded testimony from the hearing may be used as deposition testimony would be. That is a concrete reason to consider paying for a transcript under 16.1(k)(7).

Rule 16.1(p): awards "shall not have collateral estoppel effect in any other judicial proceedings."

Fees, immunity and relief

Rule 16.1(j) requires each party to pay its share of the fee in advance, for a minimum of three hours at a reasonable rate set by the arbitrator. Additional time needs written terms agreed in advance by all parties. An attorney who "refuses or neglects to pay the arbitrator's fee, after second notice, may be subject to a loss of civil case filing privileges."

Rule 16.1(q) gives arbitrators 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", and bars compelling an arbitrator to testify later unless the Court directs it.

Rule 16.1(o) is the escape hatch: any party may move for relief from or to enforce compliance with any part of the rule for good cause, "including, but not limited to, motions to compel, motions to bypass arbitration, motions requesting additional discovery, and motions to enlarge the time allowed for conducting arbitration." One thing is excluded outright: "No motion for enlargement of time for the trial date may be filed by a party subject to this Rule."

Where this connects

Participation satisfies the ADR requirement of Rule 16; a case not arbitrated in time must comply with Rule 16's ADR provisions instead.

For the dispositive motions that wait until after the hearing, see Delaware summary judgment, where cross motions are treated as a stipulation to decide the case, and the Delaware motion to dismiss.

For the discovery that continues around this track, see Delaware discovery deadlines and the Delaware motion to compel.

How Delaware compares

A short checklist

1. Check the Civil Case Information Sheet. The election is made there, by claimant's counsel.
2. Diary twenty days from the close of initial pleadings to agree an arbitrator. Missing it loses the track.
3. Serve the five-day items — authorization, records, expert reports — from the Answer and appearance.
4. Get exhibits out ten days before the hearing, or forfeit costs and risk exclusion.
5. Challenge authenticity five days out, or exhibits come in without formal proof.
6. Appear. Non-appearance costs the right to a trial de novo unless you pay the whole fee and all costs.
7. Consider paying for a transcript. Recorded testimony is the only part of the hearing usable at trial.
8. Count twenty days from the electronic filing of the order to demand a trial de novo — it is the sole remedy.
9. Weigh the fee shift before demanding one. Failing to beat the award means paying the arbitrator in full.

Where these rules live

• Del. Super. Ct. Civ. R. 16.1 — Mandatory non-binding arbitration
• Del. Super. Ct. Civ. R. 16 — Pretrial conferences; scheduling; management
• Del. Super. Ct. Civ. R. 45 — Subpoena
• Del. Super. Ct. Civ. R. 68 — Offer of judgment
• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions

This page explains what the rules say. It isn't legal advice.