Mediation, at its core, is an effort to get the parties to talk. By the time a case gets far enough along to be a candidate for mediation, it usually means the parties are no longer talking, or at least not communicating effectively.

A skilled mediator will attempt to bridge the communication hurdles that have created the impasse. However, no mediator can be effective without the good faith participation of all the parties and the parties’ willingness to listen and communicate.

Parties to a dispute may come to the mediation with a level of distrust and access to only favorable information. These biases can set the tone of the mediation and create hurdles to a willingness to consider compromise.

Overcoming these obstacles can be an uphill battle for the parties and the mediator. Counsel and clients must commit to the process and be willing to believe there is another side to the dispute in order to achieve success in mediation.

The selection of the mediator is the first important step in settling the dispute. Is the dispute a simple transaction? Are the parties incapable of trust and need a mediator who both sides can trust?

In intellectual property cases, perhaps the most important characteristic is a mediator who understands the technology, the law and has some real experience in the field.

The life of patent dispute is often long, expensive and riddled with small victories and small defeats along the way.

Mediation can occur at any stage of the proceeding, whether before a lawsuit, at the early stages of a lawsuit, around the Markman debates, before or after Summary Judgement motions are resolved, before or after trial and during appeal. There are benefits and drawbacks to mediating a case at each of these stages.

According to the 2017 American Intellectual Property Law Association Report, the average cost of a Trademark lawsuit ranges from $300,000 to more than $1,000,000.

The average cost of a Trademark opposition proceeding is over $80,000 and such a proceeding will not stop a party from using a mark or award any damages.

Copyright mediation enables parties to avoid the unusually high cost of copyright litigation. The 2017 AIPLA Economic Survey reports that the average cost of a copyright lawsuit ranges from $200,000 to $1,000,000. The costs can be contributed to the highly specialized field of copyright law, which is complex and highly nuanced.

In addition, the creative work can range from highly technical architectural works, to software code, to musical composition to literary works.

The 2017 AIPLA Economic Survey reports that the average cost of a Trade Secret case ranges from $400,000 to $1,650,000. The discovery process is often cloaked with secrecy, more times than not prohibiting the clients from reviewing the materials produced by the opposing side or even hearing the testimony obtained in the case.

These restrictions often lead to frustration and a sense of helplessness in trade secret cases.

When a business relationship goes south, lawsuits are the natural consequence. Once a claim is made, more often than not, counterclaims follow and the lawsuit takes a life of its own. All-encompassing discovery demands are the norm and with the pervasive use of electronic storage of company records, specialists are often needed to control the e-discovery challenges. Some litigants are forced to spend over $100,000 on electronic record searches alone.