Patent Law

Door Number One? Door Number Two? Or Door Number Three?: Part II

By Eric Van Ginkel

How do I choose the "right" mediator for my IP-related dispute?

Yesterday I discussed the top three questions one should ask in order to select the 'right" mediator for your Intellectual Property-related dispute. Briefly, we discussed the importance of a mediator's training, experience and reputation. I recommended that you select a mediator who has been taught the craft of mediation at an established Institution (such as my Alma Mater, the Straus Institute at Pepperdine), has several years experience in the craft of mediation, and who has a reputation for being able to settle disputes similar to your own.

The last three questions you should ask when choosing your IP mediator are more nuanced and relate to your personal taste and the circumstances of the case you are working on.

4. What is the Mediator's Typical Negotiation Style?

Your mediator must have the style of mediating that the parties like.

Several years ago, Professor Len Riskin defined the various approaches used by mediators into a system he called a 'grid' which went from being 'facilitative' to 'evaluative' and from being 'narrow' to being 'broad.'

A facilitative mediator would be someone who promotes the communication between the parties with the goal of helping to find an acceptable resolution of their dispute. An evaluative mediator on the other hand would be the person who will express an opinion about the various aspects of the case, - usually including a dollar amount that she believes to represent a fair settlement in a distributive,
zero-sum negotiation.

In my view, the best mediator will in fact consider the 'grid' to be a true continuum, in which she can freely use the facilitative and evaluative styles in the same mediation, applying these differing approaches to the various stages or aspects of the process as she sees fit. In either case, the mediator should attempt to refrain from advising a party what to do.

5. Do they have Substantive Legal Knowledge? (Notice that I put this requirement in fifth place!)

If the mediator is unfamiliar with intellectual property laws, it is obvious that she will need more time to understand the issues that arise from that area of the law, and she may require a more detailed briefing. Therefore, if for example the dispute involves a copyright matter, it is highly recommended that the mediator knows something about copyright law. Just as when a dispute involves family law it is highly recommended that the mediator is an experienced family lawyer.

In many ways, the considerations are the same as when you would select an arbitrator.

On the other hand, it should be remembered that the more important skill-set of the mediator is his or her training and experience in the mediation process. If you had to choose between a mediator with lots of experience in copyright law but without adequate training in mediation and a mediator with no experience in copyright law but with extensive training and experience in mediation, be sure to CHOOSE THE TRAINED MEDIATOR!

6. What is the Mediator's Availability Like?

Last but not least is the availability of the mediator. Imagine both parties have settled on the ideal mediator who meets all of the above requirements. As this is a big case, you guesstimate that the mediation will require two days. And now you find out that the mediator doesn't have two consecutive days available before a date that is almost five months away.

In such a case, I recommend that you check the availability of the next two mediators on your list. The timing of the mediation – and being able to settle it when it is 'ripe' – is not to be underestimated.

We will discuss 'ripeness' in a future post.

-EvG

Full post as published by IP ADR Blog on March 11, 2010 (boomark / email).