Rule 174.1 - Mandatory Mediation for Adult Guardianship Matters and Probate Disputes(a) Definitions.(1) "Mediation" means the process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the parties discharge the mediator.(2) "Mediator" means impartial person appointed by the Court or selected by agreement of the parties to a controversy to assist them in mediation. A person is eligible to serve as a designated mediator under this rule if he or she is eligible to serve as a mediator pursuant to the rules of Superior Court, or if he or she is eligible to serve as a mediator pursuant to the rules of this Court, or if the person has completed the Mediation Training Program established by the Delaware State Bar Association Committee on Law Elderly. The Court shall retain a list of individuals who are eligible to serve as mediators pursuant to this rule and shall appoint a proposed mediator in all cases where the Chancellor, Vice Chancellor, or Master deems it appropriate for mandatory mediation.(3) "Mediation conference" means that process, which may consist of one or more meetings or conferences, pursuant to which the mediator assists the parties in seeking a mutually acceptable resolution of their dispute through discussion and negotiation.(b) Assignment to mediator.(1) Parties may jointly select any person to serve as mediator who has agreed to serve on a private basis, and meets the minimal requirements set out in these rules. Such stipulation must be made within twenty (20) days after the matter is referred to mediation and must include a statement signed by the mediator expressing his or her willingness to mediate under the Mediation Rules. Alternatively, the court will assign a mediator to the case.(2) Mediators shall be compensated for their services at a reasonable hourly rate. Mediators shall submit an application to the Court after the conclusion of mediation for their compensation. All fees and expenses relating to the use of mediators in cases referred to mediation shall be borne equally by the parties unless otherwise ordered by the court.(c) Authority of mediators.(1) Mediators shall work with parties to facilitate agreements on substantive and procedural matters and attempt to aid in the voluntary resolution of cases. Mediators shall terminate the mediation if the mediator believes the process is unproductive or that any party or attorney is not mediating in good faith. Mediators may recommend to the court that sanctions be imposed against a party or attorney who has failed to comply with these Mediation Rules. Mediators shall not issue decisions or make procedural or substantive recommendations about the case to the court.(d) Participation.(1) All parties with an interest in the issue or issues to be mediated and with authority to resolve the matter must participate in the mediation conference(s). Any party may have legal counsel present to assist in the mediation.(e) Confidentiality.(1) 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, work product, and other materials 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: (A) Where all parties to the mediation agree in writing to waive the confidentiality, or(B) Statements, memoranda, materials, and other tangible evidence otherwise subject to discovery, that 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.(f) Reporting outcome of mediation services.(1) If the mediation is successful in resolving any of the dispute, a written agreement shall be submitted to the Court.(2) In the event that the agreement is not reached, the mediator shall notify the Court in writing that mediation has been concluded and an agreement was not reached.(3) If one or both parties fail to appear at any mediation conference, the mediator shall report the identity of each person who failed to appear to the Court. The Court may, thereafter, take whatever action it deems necessary or appropriate, including imposing sanctions.(g) Mediation agreement.(1) If the parties involved in the mediation conference reach agreement with regard to the disputed issues, their agreement shall be reduced to writing and signed by the parties and the mediator. The agreement shall set for the terms of the resolution of the issues and the future responsibility of each party. The agreement will be binding on all parties to it and, upon filing by the mediator, will become part of the Court's record. If the parties choose to keep the terms of the agreement confidential, a Stipulation of Dismissal may be filed in the alternative.