In a lawsuit or binding arbitration, the outcome of a case is determined by a judge or jury’s determination of what the facts are and then applying those facts to the law. The fact finder can reach the wrong conclusion. The Court can get the law wrong, or an Appeals Court can change the law after all your time and money is spent. In a mediation, the parties are usually guided by their business interests and are free to choose an outcome that is focused more on the future and less on resolving factual disputes of the past.
Mediation is a particularly attractive option for parties to an intellectual property dispute. The parties usually have a strong incentive to preserve or enhance a relationship with the opposition party. The parties often times wish to maintain control over the dispute. Creative solutions are available with creative participants and creative mediators. Developers, inventors and artists can usually reach solutions to any problems, given the opportunity and structure. A qualified intellectual property mediator recognizes these opportunities and encourages creativity in the process. A Court can only provide very specific relief available under the law and will do so very slowly and methodically, to great expense. The fast pace of technological change is not consistent with the slow pace of the legal system.
Oftentimes the parties shared common goals before the dispute arose. There is no law that prohibits the parties from continuing to share common goals and enjoying the benefits that both parties expected before the dispute. A skilled mediator can refocus the parties back on these common goals and away from the confrontational positions necessarily taken in a legal dispute. The creative use of licenses, trade secret agreements, software or computer contracts, multimedia contracts, distribution contracts, joint ventures, research and development contracts, technology-sensitive employment contracts, mergers and acquisitions where intellectual property assets assume importance are all highly-specialized agreements that can be used to allow the parties to get back to what the parties do best, which is usually not engaging in a lawsuit.
For those who want to keep their disputes out of the public eye, confidentiality offered by intellectual property mediation can be a strong incentive. The results of mediation are private, known only by the two parties, and the mediation itself occurs in a private environment, not in the public forum of a court. It can take years for a lawsuit to wind its way through the courts. Final resolution of an intellectual property dispute, whether patents, copyrights, trademarks or trade secrets, has the potential to be completed in a single day. Of course it is important to protect your intellectual property rights, but not every dispute should be tested through the Court system. Many disputes do not make economic sense to be resolved through the court process and in those cases, mediation makes sense.
Mediation is a no-risk, cost effective way to find a final resolution of your intellectual property dispute, whether it be allegations of patent infringement, trademark infringement, copyright infringement, licensing disputes, or claims of trade secret misappropriation. Not only can an effective mediator steer the parties to a cost-effective result, but the process can be timely, confidential and preserve relationships.
