Page 22 - Delaware Lawyer - Issue 2 - 2024

FEATURE | MEDIATION AND ARBITRATION
mediator or arbitrator. The obvious advantage is familiarity with Delaware substantive law and with the decisions/ inclinations of members of the Dela- ware state and federal judiciary. By vir- tue of their long experience and prac- tice with the Delaware Way, Delaware lawyers and judges generally are skilled in collegial and collaborative practices to achieve either a win-win mediation resolution, or an arbitration outcome where all parties feel that they have re- ceived full and fair consideration.
In theory, mediation can proceed without the presence of Delaware counsel. In practice, Delaware attor- neys are crucial to efficient and mean- ingful mediation. It can be difficult for skilled and experienced litigators to put aside their normal advocacy roles and encourage clients to focus on the cost-benefit analysis necessar y to resolve the matter before trial (or arbitration). Non-Delaware coun- sel, who may be accustomed to more rough-and-tumble litigation and ne- gotiation tactics, need to be educated by Delaware counsel that a hardball approach rarely will lead to a win-win resolution.
The Delaware Way is neither about concession nor meeting halfway for the sole purpose of maintaining col- legial relationships. Far from it. Dela- ware lawyers advocate as strongly for their clients as counsel in any other venue. However, good Delaware law- yers recognize the line between strong and effective advocacy and pointless strategies designed to delay and inflict pain on the opponent. Puffery and chest-pounding always are counter- productive — particularly so in ADR.
The presence and active participa- tion of Delaware counsel informs and encourages clients and non-Delaware counsel that it is in everyone’s best interests to conduct themselves profes- sionally and with civility. Two positions
canonlyconvergewhenthetrajectory is toward a meeting of the minds — not continuing to move in opposite directions.
A hallmark of the Delaware Way is respect for the judiciary. The corollary in arbitration and mediation is due regard for the arbitrator or mediator. There is no question that Delaware counsel enhance these proceedings by affirmatively validating the ADR pro- fessional’s evaluation and predictions as to how litigation and a trial will proceed (assuming counsel agree with the analysis, of course).
While the judiciar y strives for con- sistency, it is human nature that each judicial officer will have certain pref- erences and practices. Delaware is known for its small Bench and Bar, and Delaware practitioners are great students of judicial preferences. It is not an exaggeration to say that Dela- ware lawyers have a long-established cottage industr y of ensuring that they have Delaware precedent at their fin- gertips. When both the ADR profes- sional and Delaware counsel concur as to anticipated litigation progres- sion and possible trial outcomes, cli- ents and non-Delaware counsel are more likely to be brought onboard to achieve a mutually beneficial resolu- tion.
A word of caution: the Delaware Way must not be confused with collu- sive chumminess. It is easy for outsid- ers to misinterpret long-standing pro- fessional and personal relationships as a predilection to reach a resolution at any cost to the clients. Nothing could be farther from the truth.
While it is a fact of life in Delaware that the Bench and Bar regularly in- teract outside the courtroom and con- ference room — at children’s schools, sporting events, religious institutions and social events — Delaware law- yers, judges and ADR practitioners are
constantlymindfultocheckthoserela- tionships at the door where necessary. Particular care must be taken to avoid overly personal ex parte exchanges with the ADR professional, leading to the counterproductive impression that such conversations might well be tak- ing place with the other parties.
The Delaware Way is the precious coin of the realm. It cannot be for- gotten that this valuable coin may be perceived as having two sides.
The Crystal Ball
Looking ahead, our hope and ex- pectation is that the Delaware Way will continue to be a guiding light for those who serve as ADR profes- sionals and/or serve as Delaware and non-Delaware counsel in mediations or arbitrations. If we can successfully look to that light — bringing people together “without incident” — we should stand a good chance of achiev- ing the best of alternative dispute resolution in Delaware and beyond.
NOTES
1. Celia Cohen, Only in Delaware, at 2 (Grapevine Publishing, LLC 2002).
2. Id. at 4.
3. A. Rocanelli and K. Swoyer, Broken- Deal Resolution: The Delaware forums and the importance of Delaware counsel’s role, Delaware Lawyer, Vo. 41, No. 3 (Delaware Bar Foundation Summer 2023) (hereinafter “Broken-Deal Resolution”).
4. The Delaware Bar in the Twentieth Cen- tury (Delaware State Bar Association 1994), at 423; see also id. at 425 (“Another form of ADR that has recently become increasingly prevalent in Delaware is mediation.”).
5. Id. at 426-27.
6. History of the Delaware Bar From 1995
Through 2010 (Delaware State Bar Associa- tion 2011).
7. Id. at 433.
8. See Joseph A. Torregrossa, Appellate
Mediation in the Third Circuit – Program Operations: Nuts, Bolts and Practice Tips, 47 Vill. L. Rev. 1059 (2002).
9. Family Court of the State of Delaware Golden Anniversary 1971-2021, at 6 (Family Court of the State of Delaware 2021).
10. Ch. Ct. R. 174.
11. Ch. Ct. R. 93-95; 10 Del. C. § 347. 12. Broken-Deal Resolution.
20 DELAWARE LAWYER ISSUE 2 2024