This is Part of Greg Wood's Series on Why to Choose Early Mediation in Intellectual Property Cases

Resolving disputes through litigation is expensive, time-consuming, emotionally and physically draining. The unique characteristics of IP cases make mediation ideal. Here's why.

IP Litigation Threatens Entire Business 

 

The risks of major litigation concern investors, and can destabilize a business. [1] Even though less than one percent of cases are actually tried, [2] these disadvantages are realized well before settlement takes place, which is often late in the process, when the risk and expense of trial are most sharply in focus. 

That’s why Fortune 1000 companies almost universally take advantage of mediation to resolve disputes – 98% have done so. [3] But in the realm of intellectual property (IP), mediation is used much less often. [4] IP cases are second only to civil rights matters as a proportion of cases actually tried. [5]

Ironically, trial is a riskier method of dispute resolution for patentees than for any other type of litigant, and they use it much more frequently.  Why do I say riskier? Because neither District Court judges nor their juries can be counted on to understand the highly technical issues underlying patent litigation, and this very often leads to costly mistakes.  

Speaking of patent cases, Judge Alfred V. Coviello of the District of Connecticut openly doubted that juries could be effective, comparing the factual complexity of such trials to “being hit between the eyes with a two-by-four.” [6] Empirical data shows that District Court judges don’t do much better.  Professor Kimberly Moore found that District Court Judges involved in initial 

By Greg Wood

ENDNOTES

[1] For a full discussion of these topics, see "The True Cost of Unresolved Litigation.”

[2] See Galanter, Marc, and Angela M. Frozena. "A Grin without a Cat: The Continuing Decline & Displacement of Trials in American Courts." Daedalus 143.3 (2014): 115-128.

[3] Stipanowich, Thomas and Lamare, J. Ryan, Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations (2013). 19 Harvard Negotiation Law Review 1, at 40; Pepperdine University Legal Studies Research Paper No. 2013/16. Available at SSRN: http://dx.doi.org/10.2139/ssrn.2221471   (accessed July 5, 2014).

[4] Eugene R. Quinn, Jr., Using Alternative Dispute Resolution to Re- solve Patent Litigation: A Survey of Patent Litigators, 3 MARQ. INTELL. PROP. L. REV. 77 (1999)

[5] Galanter and Frozena, supra, note 2 at Table 5.

[6] Moore, Kimberly A. "Judges, Juries, and Patent Cases: An Empirical Peek Inside the Black Box." Michigan Law Review (2000): 365-409.

 

Drawing on an engineering background, thirty five years as an advocate in commercial, intellectual property and e-discovery disputes, twenty years serving as an arbitrator, 200+ mediations and 400+ hours of formal ADR training, Greg is “all in” in assisting parties in the speedy and economic resolution of disputes whether as a negotiation or settlement counselor, a mediator or an arbitrator. While Greg is available for mediation and arbitration of various disputes, his focus remains on complex commercial and intellectual property matters including e-discovery disputes. Greg can be reached at greg.wood@agencydr.com