Patent Dispute Mediation

The Role of a Mediator In Patent Disputes

Researchers have conducted extensive studies in recent years concerning the effectiveness of complex case mediation, the characteristics that make a good mediator, and the factors that are present in a mediation process that is useful to the parties. While the overwhelming consensus is that the mediation process is valuable, the ultimate value is, of course, highly dependent on the quality of the facilitator, as well as the parties’ willingness to participate in the mediation process. Certain personality and experiential traits are critical. An effective mediator should:

• Be fair and impartial, maintaining the integrity of the mediator and the process;

• Possess the business acumen, litigation experience, and legal knowledge to understand both sides’ positions;

• Strictly enforce both external and internal confidentiality agreements and rules;

• Perform with tact, patience, credibility, and empathy, enabling both sides’ to have confidence that their concerns are being addressed and understood;

• Grasp complex legal and factual issues quickly and communicate them effectively;

• Guide the process, defuse potentially damaging confrontations, and keep negotiations focused and calm;

• Insure that the mediation process encompasses the full range of key issues;

• Possess the analytical skills to perceive the dispute in its entirety, to ascertain that both parties have expressed their concerns fully, and then guide the parties in narrowing the issues in order to resolve the dispute;

• Provide thoughtful and insightful suggestions for resolution, including suggestions where concessions might be appropriate from one or both sides;

• Be willing and able to provide effective case evaluation, through risk analysis techniques, where appropriate and requested – usually well into the mediation process.

In addition, the dispute mediation process necessitates insight, intuition, and persistence. Good listening and communication skills are mandatory, as are energy, tenacity, and creativity. Any mediation passes through stages: an examination of the initial dispute, the narrowing of the issues, the drawing forth of the parties’ unarticulated concerns, possibly the feeling of having reached an impasse, the devising of workable compromises, and finally a satisfactory conclusion. The mediator must be able to guide the parties through each stage impartially, fairly, and efficiently.

Gary Kitchen’s personality, training, and experiences as both a business executive and seasoned litigator uniquely qualify him to perform this role in complex patent disputes.