This week, after a series of sealed letters from the parties in Evertz Microsystems Ltd. v. Lawo Inc., C.A. No. 19-302-MN-JLH (D. Del.) apparently indicating settlement is imminent, Judge Noreika issued the following order:
ORAL ORDER . . . Having reviewed the parties' letter stating that they have failed to settle the case and the parties' proposal that they engage in mediation with Judge Andrea L. Rocanelli "in the event settlement cannot be reached by close of business tomorrow," IT IS HEREBY ORDERED that the parties' proposal is REJECTED. For weeks, the parties have represented to the Court that settlement is imminent. Trial is set to commence on June 6, 2022 and the parties' proposal provides the Court no opportunity before the weekend to address outstanding pretrial issues. Moreover, the parties were informed on June 1, 2022, that failure to settle on their own by noon today would result in Court-ordered mediation, IT IS THEREFORE FURTHER ORDERED that the parties shall IMMEDIATELY engage in mediation before Judge Rocanelli (subject to her availability)
This order is not all that unusual, as some of our judges tend to raise settlement with the parties in the lead-up to trial.
But it's interesting to see an effect of the Court's suspension of the mediation program. Our magistrate judges here in Delaware often took an active role in negotiations between the parties in the lead-up to trial, and I'm not sure that all counsel who practice in the District of Delaware have yet adapted to using private mediators to the extent that they are used in some jurisdictions.
In some other jurisdictions, for example, counsel and the judges can easily rattle off the names of the most-frequently-used private mediators, including what kinds of cases they most familiar with and their relative merits.
Here in D. Del., perhaps because the Court has had such a well-established mediation program, counsel sometimes do not have as many well-known local private mediators who handle patent cases. I imagine that will resolve as time goes on, assuming the Court's mediation program remains dormant.
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