Patent Dispute Mediation

Focus Group Mediation

In addition to providing traditional, single facilitator mediation services, Gary Kitchen can also organize and coordinate Focus Group Mediation to assist parties in resolving their patent disputes.

While an effective and credible mediator can and will, where appropriate, provide case evaluation based upon trial experience, understanding of the factual and legal issues, and risk analysis, an alternative approach to case evaluation is emerging in various parts of the country that patent litigants should consider. This technique involves the use of focus groups in a non-binding mediation process to evaluate key facts and issues long before the parties incur the expense of trial preparation and jury trial.

In summary, the process is as follows. Focus group participants (usually 30-35) are drawn from a population with characteristics as nearly identical to the jury pool as possible. In a process facilitated by the mediator, and under the protection of confidentiality agreements, the focus group hears presentations from each side reflecting their positions regarding the key issues in the case. After the presentations, the facilitator formally polls the focus group using a written questionnaire to acquire the group’s initial impressions on a variety of issues and their impressions of the case as a whole.

After the initial polling process is completed, 24 participants participate in three mock juries comprised of eight participants each. The mock jurors deliberate and reach a non-binding verdict. Deliberations are videotaped for both clients and counsel to review and a summary report of key information garnered from both the questionnaire and the deliberations is provided to both sides and to the mediator. After a reasonable time for the parties to digest the video and report, a mediation conference is convened (or re-convened as the case may be) wherein the parties mediate the case incorporating the information garnered through the focus group.

This type of focus group has proven to be an effective means of evaluating the efficacy of a patent case and especially to evaluate disputes regarding specific issues about which the parties may be at impasse. While the results of the focus groups are non-binding, the power of the focus groups is that they permit both sides to see where, based upon the reactions and perspectives of non-attorney, third party participants, they may wish to consider further attempts at compromise.

Although somewhat more expensive than a traditional mediation involving a single mediator, the potential effectiveness of Focus Group Mediation should not be underestimated because it holds the real potential to save the parties hundreds of thousands of dollars in litigation and trial costs if it breaks an impasse and the matter resolves.

Furthermore, even if the parties cannot settle based upon the Focus Group Mediation process, the insights gained from the process itself can contribute significantly to narrowing issues for trial and even contribute to the effectiveness of both sides’ trial strategies, since the parties are effectively splitting the cost of a jury focus group.

Please contact Gary Kitchen for further details or to custom design your Focus Group Mediation.