It's been some time since the Court discontinued its Court-sponsored ADR program, and cancelled all then-pending mediations in the wake of Judge Stark's elevation.
In the years since, we have seen occasional orders from the Court requiring parties to submit to private mediation. Typically, this has occurred in cases where the parties have indicated that they are already near settlement, and often on the eve of trial.
Last week's order in Delta Electronics, Inc. v. Vicor Corporation, C.A. No. 23-1246-JLH, D.I. 70 (D. Del. Jan 9, 2025), was a bit different.
There, two days after the Markman hearing and well before any scheduled trial, Judge Hall issued an order compelling in-person mediation by the end of February:
IT IS HEREBY ORDERED that the parties shall engage in in-person mediation in good faith. The parties are to jointly hire an agreed-upon mediator. The timing of mediation efforts is left to the discretion of the parties, but the mediation must be conducted before February 28, 2025. No later than one week after the mediation, the parties shall submit a joint statement that identifies the mediator, the lead counsel for each party at the mediation and the length of the mediation, as well as a certification by the lead counsel that they have engaged in the mediation efforts in good faith. The joint statement should not disclose the substance of any offers, counteroffers or other negotiations. In addition, the parties shall meet and confer in-person to discuss claim construction per the Court's guidance at the conclusion of the hearing on January 7, 2025. The parties shall file a separate, concise joint letter setting forth their respective positions on the remaining claim construction issues at the same time they file the joint statement regarding mediation. After reviewing the parties' claim construction letter, the Court will determine whether further briefing and/or a hearing is necessary
The transcript of the referenced Markman hearing is not yet available, but given the requirements that the parties describe their good faith efforts, and the discussion of narrowing Markman issues, I would guess that this mediation was not jointly requested by the parties.
Looking into the docket a bit more, it appears that the parties had requested construction of 10 terms -- just at the upper limit of what Delaware Judges will usually allow. They'd requested two hours for the hearing which the Court granted. Nothing else on the docket sticks out as particularly contentious -- no letter writing campaign or request for sur-sur replies, or motions to strike the other guy's big dumb face.
So for now, all we know is that something can happen in a Markman hearing that will cause the Court to compel mediation. Tread lightly friends.
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