Page 19 - Delaware Lawyer - Summer 2023

ence is that the CCLD case manage- ment order will include a deadline for alternative dispute resolution, whereas the Court of Chancery may encour- age, but will rarely require, alternative dispute resolution.
Alternative dispute resolution is in- creasingly more attractive as litigation costs increase and the business costs associated with intrusive discovery are more burdensome. Alternative dispute resolution, especially mediation and ex- pedited arbitration under the Delaware Rapid Arbitration Act, is significantly more cost-effective and expedient than trial for litigants and alleviates some of the burden on the Delaware trial courts. Particularly in Delaware, many retired jurists and very experienced liti- gators are finding a role in the niche of corporate and complex commercial al- ternative dispute resolution.12 Indeed, litigants’ access to highly specialized private professional neutrals may be, in part, responsible for the increased utili- zation of alternative dispute resolution to resolve these disputes. The availabil- ity of alternative dispute resolution ser- vices offered by Delaware practitioners is certainly yet another facet of Dela- ware’s global presence as a full-service business jurisdiction.
While there is much discussion about Delaware counsel’s role in liti- gation proceedings, what is the role of Delaware counsel in alternative dispute resolution?13 If not otherwise specified in the transaction documents, the par- ties to many broken-deal disputes will often select mediation as the chosen form of alternative dispute resolution. When considering who will participate in a mediation conference, it is im- portant to consider the dynamics of the team for effective mediation. As a private Professional Neutral, Judge Rocanelli relies upon Delaware coun- sel to facilitate successful mediation in many important ways. Judge Rocanelli does not require, but strongly encour-
ages, Delaware counsel’s participation in mediation. Although mediation is significantly more cost-effective than resolution by trial, parties may push back on mediation costs, and may sug- gest cutting costs by limiting staffing at the mediation conference to the non- Delaware law firm.
Regardless of whether a client is represented directly by Delaware coun- sel, or by counsel admitted pro hac vice, different lawyers have different roles in managing the client’s expectations and working with the client to pursue their goals. For example, one or more law- yers involved in mediation may have a long-term relationship with the cli- ent (the “relationship-lawyer”) and, therefore, are better able to set goals. Litigation counsel, on the other hand, should have more objectivity and be in a better position to adjust a client’s ex- pectations for litigation.
In Judge Rocanelli’s experience, where a client is represented by both Delaware counsel and outside counsel, the outside counsel is frequently the relationship-lawyer, while Delaware counsel is the litigation expert. In these instances, Delaware counsel has more objectivity and can push back on a cli- ent’s less reasonable expectations with- out concerns of endangering a long- term relationship. Mediation may feel disconcerting to a client whose counsel is asked by a mediator to forego em- phasis on the merits of the client’s po- sition and, instead, focus on the value of settlement. Indeed, a client may feel abandoned but for the ability of the re- lationship-lawyer to act as an ally. This is the type of dynamic that an experi- enced mediator can — and should — leverage in the mediation process.
Delaware is a unique jurisdiction in which to practice, whether as a member of the Delaware Bar or as outside coun- sel admitted pro hac vice. The business expertise available to litigants through the Delaware business law community is
intertwined with the intricacies of “The Delaware Way.” In short, Delaware counsel is a client’s best asset in suc- cessfully navigating Delaware’s complex legal landscape, whether disputes are resolved by trial or through alternative dispute resolution.
NOTES
1. In re: Designation of Actions Filed Pur- suant to 8 Del. C. § 111, Cross-Designation Order, at *2 (Del. 2023).
2. 637 A.2d 34 (Del. 1994).
3. Id. at 52.
4. It is a noteworthy and important lesson to litigants that the Delaware Supreme Court jurists would actually read the record, includ- ing a deposition transcript. This is consistent with the expectations of Delaware lawyers that Delaware jurists master the record and will hold counsel accountable at this level of detail.
5. It is important to note that the Court specifically acknowledged the professional- ism of the parties throughout the remainder of the case: “This Court notes and has noted its appreciation of the outstanding judicial workmanship of the Vice Chancellor and the professionalism of counsel in this matter in handling this expedited litigation with the expertise and skill which characterize Dela- ware proceedings of this nature. The miscon- duct noted in the Addendum is an aberration which is not to be tolerated in any Delaware proceeding.” Id. at 37 *n.2.
6. See DG BF, LLC v. Ray, 2021 Del. Ch. LEXIS 269 (Del. Ch. Nov. 19, 2021).
7. As a judge, Judge Rocanelli developed a keen appreciation for Delaware counsel act- ing as a shield between the Court and lawyers admitted pro hac vice.
8. The first lesson in “The Delaware Way” Judge Rocanelli learned when she arrived as
a lateral associate at Morris Nichols Arsht & Tunnell was that it was not necessary to send a confirming letter when opposing counsel granted an extension. (Typed letters, sent by hand, were still standard practice in the late 1980s.) Indeed, she was told it would be con- sidered insulting to send such a letter.
9. 2010 Del. Ch. LEXIS 175 (Del. Ch. Aug. 13, 2010).
10. Id. at *19–20. (Internal citations omit- ted).
11. See id.
12. A retired Delaware jurist acting as an alternative dispute resolution professional
is well-positioned to credibly comment on potential outcomes, and to forecast the reac- tions and responses of the presiding Delaware jurist. In addition, a retired Delaware jurist from one of the state or federal jury-trial courts will know the jury pool.
13. As Chief Disciplinary Counsel, Judge Rocanelli presented countless seminars on the Delaware courts’ expectations for Delaware counsel, as well as the demands imposed on those admitted pro hac vice.
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