The Selection of a Mediator

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 parties should not spend their time explaining (or debating) the law that dictates the resolution of their dispute. The parties should not spend time explaining how a patent or trademark is tested or how damages are determined. A mediator is most effective when he or she can test, question and offer insight into the strengths and weaknesses of arguments. A mediator can often serve as a reality check to all participants and by doing so, facilitating settlement. It is also important to choose a mediator willing to invest substantial time before and, if necessary, after the mediation session. If a settlement is not reached at the first mediation, the mediator should work with the parties until the case is resolved. A good mediator must be willing and able to craft creative solutions to complex problems.