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Bar News - April 17, 2009

Intellectual Property Law: Successful Mediation - Choosing the Right Mediator


Paul C. Remus
There is an abundance of articles describing why mediation is a desirable alternative to a trial. However, there is a scarcity of articles describing steps the parties can take to make mediation more effective. This article describes, primarily in the context of an intellectual property (IP) case, one step the parties can take to increase the probability of a successful mediation.

The single most important step that the parties can take is to choose the "right" mediator. It is self-evident that a mediator should know the applicable law, and in IP cases, the underlying technology. It is also clear that a mediator should have listening skills and persuasive abilities. However, there are a number of other, not so evident attributes that contribute to a successful mediator.

Three Important Qualities

First, a mediator should be predisposed to settling cases. A "battle-hardened" litigator who fights "tooth and nail" in representing litigants may not be the best mediator because he does not appreciate the uncertainties of a trial. In addition, a mediator who tries to find the one "right" solution to the dispute as opposed to any one of a number of "right" solutions may not be the most helpful. For example, in IP cases, a patent lawyer trained as an engineer may treat the mediation as an engineering problem and try to steer it to the one "right" answer as opposed to all the "wrong" answers.

Second, a mediator should be familiar with all the possible resolutions of the dispute being mediated. One of the advantages of mediation is that there are a number of possible resolutions, not just the award of damages, if any, that the defendant owes the plaintiff. For example, in an IP case, possible resolutions may include a cross-licensing agreement or a standstill agreement. If a mediator is not familiar with such agreements, he will not be able to introduce them in the mediation or respond to their introduction by one of the parties.

Third, and most important, a mediator should request two types of written statements from the parties before the mediation begins. Most mediators request a "statement of the case," which is typically a discussion of the strengths and weaknesses of the case. This statement usually consists of summarized paragraphs from the legal briefs. As is described in more detail below, it is preferable for a mediator also to request a "settlement statement," which is a discussion of (1) why the case has not settled, and (2) what it will take for the case to settle. To the extent time is spent during the mediation discussing the settlement statements, rather than discussing the case’s strengths and weaknesses, which the parties already know full well, the mediation has a greater probability of a successful conclusion.

Settlement Statements

When a mediator receives settlement statements from the parties, two things are immediately clear. When a party prefers not to settle, or has not realistically tallied the risks and rewards of a trial, the settlement statement will tend to look more like a statement of the case, which gives the mediator helpful information. On the other hand, if the settlement statement does realistically describe reasons why the case has not settled and what it will take to settle it, the mediator has enormously helpful material with which to begin the mediation.

Of course, a prime consideration is whether the settlement statements go to the mediator alone or whether parties exchange settlement statements. Statements of the case are customarily exchanged. Settlement statements sent only to the mediator may contain exaggerated assertions, but they enable a party to be entirely candid about settlement, which is an essential purpose of mediation. When settlement statements are exchanged, their content and tenor tend to emphasize legal issues, which make them more like a statement of the case. On balance, it is usually more helpful to have the settlement statements go to the mediator only.

Paul Remus is with Devine, Milimet & Branch in Manchester. He may be reached at

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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