The District of Delaware generally suspended its mediation program in 2021, and mediations before a magistrate judge rarely happen in patent cases these days (although they do sometimes happen in some other cases, such as employment cases).
Since then, parties have sometimes moved to private mediations—especially when ordered to—but generally in my experience the overall number of cases that go through mediation has declined, and there aren't a huge number of local patent-case mediators.
When we last discussed this, we noted from comments at the 2023 Bench and Bar conference that the Court views patent case mediations as very burdensome, and it generally is in agreement that they don't make sense—although it may be easier to get a referral for mediation with some district court judges than others.
In light of all that, I thought it was worth noting an example last week of a request for mediation referral in a patent case. The case went to trial about a month ago, resulting in a $2m verdict for breach of a settlement agreement, but also a finding of no infringement. As described by the parties in their letter requesting mediation, all that remained was the attorney fee motion:
I write on behalf of both parties to respectfully request that the Court consider referring the above-captioned case to mediation before one of the Court’s Magistrate Judges. As Your Honor is aware, following a jury trial in late October, the Court entered judgment on November 9, 2023. D.I. 305. Following entry of the judgment, DuBois filed a Motion for Attorneys’ Fees (D.I. 312), and subsequently Ecolab filed a renewed Motion for Judgment as a Matter of Law (D.I. 320). While we appreciate the Court’s Standing Order No. 2022-2 no longer permits mediation in patent cases, we believe this case is sufficiently advanced that a Magistrate Judge might be able to assist the parties in reaching a resolution.
Ecolab Inc. v. DuBois Chemicals, Inc., C.A. No. 21-567-RGA, D.I. 329 (D. Del. Dec. 13, 2023).
It worked! Judge Andrews referred the case for mediation just two days later:
ORAL ORDER: This case is REFERRED to Magistrate Judge Laura D. Hatcher for ADR. Ordered by Judge Richard G. Andrews on 12/15/2023.
Id., D.I. 334.
Of course, there is no guarantee that any of our other judges would feel the same. And it's possible the parties here discussed mediation with the Court at the recent trial (although there is no indication of that in the letter). Either way, this is a useful data point, at least for those with cases before Judge Andrews.
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