THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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Plaintiff(s), )
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v. ) Civil Action No. ____-_________-___
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Defendant(s). )
ORDER GOVERNING 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 20___.
MEDIATION CONFERENCE
1. A mediation conference is scheduled with Plaintiff(s) and Defendant(s) for
, , , beginning at _ .m.
TIMING OF ARRIVAL AND DEPARTURE FROM MEDIATION
2. Unless otherwise notified by the Court, the mediation conference will begin at
.m. and parties should expect it will last until .m. Thus, required participants attending
the mediation should not make air or train reservations that would require them to leave Judge
Burke’s Chambers prior to .m. (unless the Court has previously indicated that
it will excuse those persons from the mediation early). To the extent that the mediation ends prior
to .m. because no further progress can be made, or because the parties reach
agreement on settlement, required participants will be excused by the Court at that time and may
then leave the courthouse. If a mediation is still ongoing at .m., Judge Burke will
then talk with the parties to determine whether there is joint interest in extending the mediation.
If any party has questions about these timing requirements, they should contact Judge Burke’s
Chambers by phone in advance of the mediation to address those questions.
REQUIRED PARTICIPANTS
3. Each party must be represented at the mediation conference by at least one of
each of the following types of required participants, each of whom should be very familiar with
the case: (a) Delaware counsel; (b) outside counsel (if the case is not being litigated exclusively
by Delaware counsel); and (c) a party representative who has full authority to act on behalf of that
party.
A representative with “full authority” is someone who, if persuaded during mediation that
their side should offer or accept a certain amount of money to settle the case, has the ability, on
the spot, to authorize the offer or acceptance of such a payment—even if prior to the start of the
mediation that representative’s party had not expected to offer or accept a payment of that size. A
representative with “full authority” is also someone who has knowledge of the dispute and has
knowledge of the business objectives and operations of the representative’s company (if
applicable), so that the representative can generate and consider solutions in real time during the
mediation. If any party has any questions as to whether they are able to bring a representative with
settlement authority to the mediation, they should contact Judge Burke’s Chambers by phone in
advance of the mediation to address those questions.
In-person attendance at the mediation conference by the required participants described
above is required unless otherwise authorized by the Court. Any request to modify this in-person-
attendance 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
4(a). No later than the date on which mediation statements are due (see ¶ 5 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 work telephone
number, (ii) a cellular telephone number, and (iii) an e-mail address where the
attorney can be regularly reached. Unrepresented parties shall provide at least one of these three
forms of contact information.
4(b). No later than the date on which mediation statements are due (see ¶ 5 below),
counsel shall submit a list of all participants, including attorney and non-attorney
representatives who will be attending mediation on behalf of their party, to the opposing party
or parties. If a party has concerns regarding the disclosed attendees for the opposing party, they
should raise those concerns promptly with counsel for the opposing party and with the Court.
CONFIDENTIAL MEDIATION STATEMENTS
5. On or before , , an original and one
copy of a confidential mediation statement containing all of the information required by ¶ 7 shall
be submitted only to the Magistrate Judge. The mediation statements shall be delivered to the
Clerk’s Office in an envelope addressed to U. S. Magistrate Judge Christopher J. Burke and
marked “CONFIDENTIAL MEDIATION STATEMENT.” The statements shall not be
exchanged among the parties or counsel (unless the parties jointly agree to do so), 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 they are not part of the Court record.
6. 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 ten (10) pages.
7. 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 and Legal Background”: Provide a brief factual background,
clearly indicating which material facts are or are not in dispute, and a brief summary of the
relevant law, including applicable statutes, cases and standards. Explain your side’s position as
to the key factual and legal issues in the case. It is helpful to the Court, particularly with regard
to complex litigation in which a large number of legal issues are pending and unresolved, if
counsel for all sides can communicate with each other in advance of filing the mediation
statement, in order to attempt to ensure that all of parties will address the same key legal issues
in their respective statements. 1
1
In patent cases, the parties need not provide a summary of applicable law as to
issue areas that are common to most such cases (e.g., the legal requirements for direct and
indirect patent infringement or for demonstrating patent invalidity). However, to the extent that
the case involves legal issues that do not commonly arise in every patent litigation, a summary of
applicable law as to those issues would be helpful.
c) “Honest Discussion of Strengths and Weaknesses”: Provide an honest
discussion of the strengths and weaknesses of the party's claims and/or defenses. This section
should include description of both strengths and weaknesses— not just the former.
d) “Settlement Efforts”: Provide a brief description of prior settlement
negotiations and discussions, including the most recent offers or demands exchanged between
the parties, the reasons for rejection, and the party's assessment as to why settlement has not been
reached.
e) “Settlement Proposal”: Describe the party’s proposed framework for a
resolution (i.e., describe what the material components of a settlement agreement are from the
party’s perspective and provide a proposal as to what the content of each of those components
should be). Identify any interests or issues not directly involved in this matter that may frustrate
or 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.
f) “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.
8. Pertinent documents may be submitted as exhibits to the mediation statement.
Counsel are requested to limit such exhibits to those that are most directly relevant to
the mediation, and to try to limit the total number of pages of exhibits to a manageable number. 2
CONFIDENTIALITY
9. 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
10. 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
11(a). Possession by an attorney of an electronic device is permitted in accordance with
this Court's Standing Order regarding possession by attorneys of cameras and personal electronic
devices, dated May 15, 2023. Any request that representatives of a party be permitted to utilize
electronic devices during the mediation conference (i.e., contrary to the provisions in the
Standing Order) 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 ¶ 5 above). The request
shall include the name(s) of the individual(s), a list of the equipment requested to be authorized,
and a representation about why that counsel believes the presence of the requested equipment
will be of assistance in the mediation process.
2
In a patent case, the Plaintiff(s) should include the patent(s)-in-suit as an
exhibit/exhibits to their mediation statement.
11(b). To obtain WiFi access for the date(s) of mediation, counsel are directed to the
Court’s website. It is the responsibility of Delaware counsel to complete and submit the required
form on the website to obtain authorization of the Court, no later than 5 business days prior to
the date on which the mediation conference is scheduled. Failure to submit the request in
accordance with the Court’s website will result in the request being denied.
OBLIGATION OF GOOD FAITH PARTICIPATION
12. 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
13. 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/ Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE
