ORDER GOVERNING PATENT MEDIATION
CONFERENCES AND MEDIATION STATEMENTS
THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH
SHOULD BE READ BY COUNSEL PRIOR TO PREPARATION OF A
MEDIATION STATEMENT.
At Wilmington this day of , 2012.
IT IS ORDERED that:
MEDIATION CONFERENCE
1. A mediation conference is scheduled for , 2012 beginning at .m. All required
participants (see ¶ 2) are to report at this time to Courtroom ___ and to remain available until
excused by the Court. Dress for the mediation is business casual.
REQUIRED PARTICIPANTS
2. Each party must be represented at the mediation conference by the following required
participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c) the party/parties
and/or decisionmaker(s) of the parties, who must have full authority to act on behalf of the parties,
including the authority to negotiate a resolution of the matter and to respond to developments during
the mediation process. Full authority means that those participants on behalf of a party should be
able to make independent decisions and have a knowledge or understanding of the dispute and/or
the business objectives/operations of their company to generate and consider solutions and/or to be
able to address the negotiation dynamics in mediation. It is not just settlement authority, that is, to
make an offer or to accept an amount.
In-person attendance at the mediation conference by the participants described above
is required unless otherwise authorized by the Court. Any request to modify this requirement shall
be made in writing to the Magistrate Judge, with a copy to all counsel or pro se parties, no later than
fourteen (14) days before the mediation conference.
CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
3. (a) No later than the date on which mediation statements are due (see ¶ 4
below), counsel shall provide to the court in a writing separate from the mediation statement, for
each attorney who will be attending the mediation conference: (i) a direct dial telephone work
number, (ii) a cell or home telephone number, and (iii) an electronic mail address where the attorney
can be regularly reached. Unrepresented parties shall provide at least one of these three forms of
contact information.
EXCHANGE OF LIST OF PARTICIPANTS ATTENDING MEDIATION
(b) No later than the date on which the mediation statements are due (see ¶
4 below), counsel shall submit a list of all participants, including attorney and non-attorney
representatives, who will be attending the mediation on behalf of their party, to the opposing party
or parties.
CONFIDENTIAL MEDIATION STATEMENTS
4. On or before , 2012, AN ORIGINAL and ONE COPY of a confidential mediation
statement containing all of the information required by ¶ 6 shall be submitted ONLY to the
Magistrate Judge. The mediation statements shall not be filed with the Clerk's Office, nor emailed
to Chambers without permission, but shall be delivered to the Clerk’s Office in an envelope
addressed to U. S. Magistrate Judge Sherry R. Fallon and marked “CONFIDENTIAL
MEDIATION STATEMENT.” The statements shall not be exchanged among the parties or
counsel (unless the parties so desire), shall not be provided to the trial judge, and shall not become
part of the record in this matter. Mediation statements shall NOT be electronically filed since
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they are not part of the Court record.
5. The mediation statements may be in memorandum or letter form. They must be
double-spaced, in no less than a 12-point font, and be no longer than twenty (20) pages.
6. The mediation statements must contain each of the following headings and must
contain a discussion of each of the topics described below:
a) “The Parties”: provide a description of who the parties are, their relationship,
if any, to each other, and by whom each party is represented, including the identity of all individuals
who will be participating on behalf of a party during the mediation conference.
b) “Factual Background”: provide a brief factual background, clearly
indicating which material facts are not in dispute and which material facts remain in dispute.
c) “Summary of Applicable Law”: provide a brief summary of the law,
including applicable statutes, cases and standards. Copies of any unreported decisions (including
decisions from this jurisdiction) that counsel believes are particularly relevant should be included
as exhibits (see ¶ 7).
d) “Honest Discussion of Strengths and Weaknesses”: provide an honest
discussion of the strengths and weaknesses of the party's claims and/or defenses.
e) “Settlement Efforts”: provide a brief description of prior settlement
negotiations and discussions, including the most recent offers or demands exchanged between the
parties and the reasons for rejection, and the party's assessment as to why settlement has not been
reached.
f) “Settlement Proposal”: describe the party's proposed term(s) for a resolution.
Further, identify any interests or issues not directly involved in this matter that may frustrate or
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further settlement. If the party has any suggestions as to how the Court may be helpful in reaching
a resolution, such suggestions should also be described.
g) “Fees and Costs”: list separately each of the following: (i) attorneys’ fees
and costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith estimate of
additional attorneys’ fees and costs to be incurred if this matter is not settled; and (iv) good faith
estimate of additional other fees and costs to be incurred if this matter is not settled.
In addition to the required topics described above, and provided that the mediation
statement complies with the page limit stated above, counsel are encouraged to address any other
matter they believe may be of assistance to the Court.
7. Crucial or pertinent documents may be submitted as exhibits to the mediation
statement. Counsel are cautioned to limit such exhibits.
CONFIDENTIALITY
8. The contents of the mediation statements and the mediation conference
discussions, including any resolution or settlement, shall remain confidential, shall not be used
in the present litigation nor any other litigation (whether presently pending or filed in the
future), and shall not be construed as nor constitute an admission. Breach of this provision
shall subject the violator to sanctions.
EX PARTE CONTACTS
9. Before, during, and after the scheduled mediation conference, the Court may find it
necessary and useful to communicate with one or more parties outside the presence of the other
party or parties.
REQUEST TO BRING ELECTRONIC EQUIPMENT
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10. Any possession by an attorney of an electronic device shall be permitted in
accordance with this Court's Standing Order regarding possession by attorneys of cell phones, other
PDA devices, and laptop computers, dated November 17, 2011. Any request that representatives
of a party be permitted to bring electronic equipment to the mediation conference shall be made in
writing by counsel and shall be submitted in a separate letter no later than the date on which
mediation statements are due (see ¶ 4 above). Any such request shall include the name(s) of the
individuals, a list of the equipment requested to be authorized, and a representation that counsel
believes the presence of the requested equipment will be of assistance in the mediation process and
that the request is not being made just for convenience.
OBLIGATION OF GOOD FAITH PARTICIPATION
11. The required participants shall be available and accessible throughout the mediation
process. The Court expects the parties' full and good faith cooperation with the mediation process.
In particular, the Court expects both the lawyers and the party representatives to be fully prepared
to participate. The Court encourages all participants to keep an open mind in order to reassess their
previous positions and to find creative means for resolving the dispute.
AVOIDANCE OF SANCTIONS
12. All counsel are reminded of their obligations to read and comply with this
Order. Delaware counsel are reminded of their obligations to inform out-of-state counsel of this
Order. To avoid the imposition of sanctions, counsel shall advise the Court immediately of any
problems regarding compliance with this Order.
/s/
UNITED STATES MAGISTRATE JUDGE
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