copyright, trademark mediation

mediation is an interesting concept. it can preceede or follow the filing of a lawsuit, and is supposed to involve a totally neutral third party as the mediator. it is held confidential by contract and what is said will not be used against the speaker if the case does not settle. say, for example, that you have been sued for copyright infringement. maybe you are an architectural firm and you have purloined, quite by accident you assert , another's plans. the owner is angry because it believes you have stolen from it and it wants compensation for your infringement.

there is no contract that requires mediation between you and the plan's authors so it is up to you and the author to each agree on mediation. is it a worthwhile process and how do you get there? what are you looking for in a mediator?

this isnt the garden variety of neighborhood dispute where one neihbor doesnt cut her grass and the person next door is trying to get her to do so. here, there is money at stake and a potential federal lawsuit that will be very expensive to resolve if it goes all the way (copyright cases can only be filed in the US district courts).

but as the case progresses it may become more difficult to settle at a reasonable price. the parties will be spending money on lawyers and feelings will become more frayed.

when i learn of a suit filed against my client, or threatened, i almost always call the other side's lawyer just to introduce myself...eventually, we will required to confer on electronic discovery and other preliminary issues anyway. so this is a good chance to say hello and begin to establish a rapport. depending how the conversation goes, i sometimes ask whether the other side will consider early mediation. sometimes they do, and sometimes they do not. some of the reasons for not doing so at that stage might be lack of discovery; lack of expert's opinion regarding money damages; the desire to stay with the case and not settle it; the desire of the plaintiff to punish the defendant; the feeling that "free" discovery will occur.

sometimes, however, the plaintiff is looking for a quick resolution and the lawyers can help that resolution along with mediation.

mediation is non binding. it helps each side learn about its case. sometimes it is desireable to conduct a little discovery before mediation to help flesh out the claims and the defenses. the mediator is supposed to be a neutral who really facilitates the process, but there are times when a person experienced in the subject area, whose been around the block...and has come back...can be helpful in interjecting a dose of reality into the discussions. that's for the lawyers to decide.

the parties and lawyers will meet with the mediator who should have requested a somewheat comprehensive briefing that might include what the parties think they can prove if the case goes to trial, strengths and weaknesses, and the history of any settlement discussions. following the mediator's introduction likely each party will make an opening statement about its perceptioon of its case, and its not a bad thing for the plaintiff and defendant to hear the other side's view. a mediator might restate this view point to reinforce it.perhaps it is being heard for the first time.

the mediator may or may not break the parties out into seperate rooms and shuttle back and forth. realisim is very important if the case is to be resolved in mediation, and the mediator if experienced in the subject area can add that rrealisim if both sides agree that the mediator should do this and not remain simply nuetral. i like to hear the mediator's perspective, and where cases can't be settled, the mediator's perspective may cause me to change my strategy. for example, if i am making no headway with the mediator in explaining an issue, or convincing the mediator, why should i think i will do any beeter with the judge or jury?

if the parties are able to reach agreement, it is very wise to document the agreement with enough detail that the agreement can be enforced if a party goes back on its agreement. even if the parties can't reach full settlement they may agree to resolution of certain aspects that will streamline the case, for example, a range of money damages. and they can always return to the mediation table in the future.

oh yes. don't fret that the judge who is assigned this case will feel left out if this case does not reach her court room. likely, she has more than enough to keep her busy. i have even received thank you notes from judges.