Things every client should understand about intellectual property disputes

Discussion, mediation

Discussion is by far the most common method of resolving disputes, and it remains the most effective and least expensive mode by which disputes are resolved.

Mediation refers to a process by which a trained facilitator, termed a mediator, conducts a structured discussion between the parties in an effort to facilitate resolution of a dispute. Although the parties may have been compelled to participate in a mediation session (e.g., a “court ordered mediation” ordered by the Court to ensure that the parties have given settlement possibilities genuine and thoughtful consideration), in general, in a mediation, neither party can be compelled to settle. The mediator works with the parties jointly, and individually, in an effort to help them to reach a settlement agreement themselves, but, if either party ultimately decides it is not ready to settle, it is not compelled to do so.

The non-binding character of mediation might lead one to anticipate that it would not constitute a particularly effective mechanism of dispute resolution, but this isn’t the case. Mediation has historically been, and remains to this day, an extremely effective mechanism for the resolution of disputes. Reasons for its effectiveness continue to be the subject of lively debate, but many believe that (a) the fact that the parties retain control (thus lowering their respective stress levels in approaching the mediation); and (b) the fact that the mediator is frequently one of the first largely unbiased individual that the parties will have heard from regarding the dispute tends to maximize the probability that the parties will effectively listen to the positions asserted by the other side, not uncommonly resulting in settlement.