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.
Sometimes a party will bring an expert report to the mediation to bolster a parties’ claims. This can be an effective practice, but in intellectual property disputes, expert reports can be dense, complicated or largely indecipherable. Spending time reviewing reports during mediation is a distraction and waste of time. The party offering any report should limit any report to easily digestible summaries, graphs, charts that highlights the conclusions, it should not be a comprehensive Rule 26 report.
A successful mediation can turn on who participates. Party representatives attending the mediation, whether in-house counsel or business executives, must have full authority to negotiate and ultimately settle the case. This is often required by a Court order or statute. But successful mediation requires more than minimal adherence to this requirement. The participant should have the authority and authorization to agree to deals not considered before the mediation. The participant must have the ability to recognize and factor into a decision matters that may be raised for the first time at mediation. Much like litigation, mediation is fluid, new ideas, information or theories may significantly alter the respective strength or weakness of a claim. It is also important that all parties attend the mediation in person. Participation by phone does not allow the mediator to develop a personal rapport or pick up on nonverbal signals that may be necessary to fashion a favorable settlement.
Parties often enter into lawsuits hoping to achieve concessions or to be declared a victor. This rarely happens in trial, most cases are ultimately resolved with something less a total victory. Parties to a lawsuit should be prepared for this outcome. Parties to a mediation need to be prepared to consider a resolution short of complete victory as well. The difficulty for every party to a lawsuit is knowing when to stop chasing the goals of a lawsuit and the attendant costs. Emotions and distrust may impede a party’s ability to make a rational decision on the matter, but it must be done. While a rational decision does not necessarily mean compromise, in most cases it does. Before attending a mediation session, parties should take some time to obtain a reality check from a trusted confidante and try to step away from the emotion and distrust, at least for the mediation session.
All mediation participants should be prepared and willing to disclose information about the positions taken. This may seem counterintuitive to how one approaches litigation. However, the confidentiality protections of mediation should provide comfort that the information will not harm the litigation positions taken. Frank discussions of strengths and weaknesses are the cornerstone of successful mediation.
A party should always be open to solutions outside the preconceived notion of what it means to settle. Ordinarily, settlement means how much a Defendant will pay a Plaintiff. While this may still be the case in intellectual property cases, many times it is much more complicated than an exchange of money. Intellectual property clients are largely creative individuals accustomed to thinking beyond conventional wisdom. This trait should not be left outside the mediation room. Creativity is particularly helpful when a defendant lacks the ability to pay or an exchange of money would not leave either party truly satisfied.
