Mediation in Intellectual Property Cases: At the Mediation

When people hear “mediation,” they might picture a neutral setting where parties calmly work out differences. In reality, intellectual property disputes are anything but calm. They bring together lawyers deeply invested in their technical and legal positions, businesspeople with history, and clients who see the fight as about principle, not just money.

The way counsel and the mediator prepare and runs the session can make the difference between progress and a wasted day. Let’s take a look.

Opening Statements: Help or Hazard?

Traditionally, mediation began with opening statements. Each side would lay out its case, much like in court. On paper, this makes sense—especially in IP cases where complex technology benefits from a clear explanation. Done well, these statements can help parties understand one another’s positions and highlight both strengths and weaknesses.

But too often, lawyers slip into closing argument mode. They don’t explain; they attack. And they vilify instead of clarify. A mediator may spend hours undoing the resulting hostility.

With caution, opening statements can still serve a purpose, if done carefully.  Still, I default to no opening. But if both sides agree—and if they promise to keep the tone respectful—we can try it. If either side objects, it’s best to skip them. Written submissions exchanged between the parties and provided to me before mediation usually serve the same role with less heat, giving parties time to examine the other side’s position and cool down.

Preparation Before the Day

The real work begins before the session. After reviewing submissions and background documents, the mediator may schedule private calls with counsel. These conversations clarify technical arguments, but more importantly, they uncover the human side of the case. In other cases, I rely on confidential letters answering questions I pose to be provided only to me.

A mediator may learn that one executive wants blood while another just wants closure. Or that counsel for the parties have a rocky history. Or that there’s potential for a creative licensing deal lurking in the background. Or the lawyers just can’t get along. Or something else.

This information shapes the day ahead. Mediation is rarely about pure legal merit. It’s about what is driving the dispute, who really calls the shots, and what solutions are possible. Counsel are more candid in a private phone call or letter than in a mediation statement, making this information invaluable.

Final preparation

In earlier articles we’ve addressed getting ready for the mediation.  But you will also want to get your client ready for the mediator.  Mediators have different styles.  Some are evaluative and might tell you your side has no chance of winning.  They may be saying that to the other side.  You and your client may need to get prepared for what amounts to an hours long argument with the mediator. 

Some mediators are effective with that style.  But others, like me, take a more cooperative approach.  It’s more a matter of helping folks recognize the challenges and strengths of the case.  And perhaps more importantly begin to analyze settlement as a business decision. Let the client know what to expect. 

And here is a tip on that. You will want to work up the expected cost of bringing the case to an end, including fees, costs, and efforts of your client’s personnel.  As noted below, at some point you will be examining the possible alternatives to a settlement.  You can’t do that unless you have a handle on how expensive moving ahead with a trial – and probably a later appeal – will be. 

Here’s another tip.  Don’t let and weaknesses in your case you have learned about as it has progressed come as a surprise to your client.  They shouldn’t be hearing about that for the first time on mediation day.

Setting the Stage

Even without openings, it is valuable to begin with a short joint session. Everyone sees who’s in the room, ground rules are laid, and a few clarifying questions can be asked.

This joint time also reminds participants they are dealing with people, not abstractions. Mediators who show they’ve studied the case can sometimes highlight points of agreement, narrowing the field of conflict. From there, the session moves to caucuses, where the hard work begins.

Reality Testing in Caucus

In caucus, the mediator helps parties confront the risks of litigation. Lawyers and clients may believe their case is a sure win. The mediator’s task is to show that no case is a lock.

But it’s not enough to say, “All cases have risks.” Parties need specifics about their cases. And a mediator has to know quite a bit about the facts and law that apply in this specific case to be credible.

Maybe a patent claim could be invalidated. Maybe damages are harder to prove than expected. Maybe a jury won’t grasp the technology. These realities force parties to reassess their WATNA (worst alternative to a negotiated settlement) and BATNA (best alternative). That recalibration opens space for settlement.

Structuring Settlement

Once parties face litigation risk, the focus can shift to possible settlement structures. Options include:

- Monetary terms: lump sums, ongoing royalties, or staged payments.
-Going forward agreements: ceasing disputed practices, modifying products, or changing trademarks.
- Creative deals: cross-licenses, joint ventures, or supply arrangements.

IP cases often involve ongoing relationships, so creative business solutions could be vital. But the right structure isn’t always obvious. Parties may need to explore several before one sticks.

Impasse is common, but it doesn’t mean failure. Complex disputes may require more than one session. Early progress can lay the groundwork for resolution later.

If Impasse Hits

Sometimes the roadblock is information. For example, a plaintiffs may believe  the defendant has under-reported sales. In those cases, the mediator may adjourn so parties can gather the missing facts. The goal then is to agree who will provide what information and when. It may be better to delay, allowing the parties to  gather key facts than to push a premature settlement.

Other times, the blockage lies in priorities. Counsel may focus on trial victory while clients prefer a business solution. The mediator’s job is to realign the two. Adjusting who meets with whom can also help. Business leaders may talk more productively without lawyers present. Lawyers may benefit from candid “lawyer-to-lawyer” sessions with the mediator. Different combinations can break logjams.

As a possible settlement begins to come into view, be prepared for some extended positional bargaining.  Clients and lawyers tend to get tired of small moves and the extended back and forth.  But I have found it is nearly impossible to foreclose a fair amount of it.  Trying to move that  along too fast often can lead to failure. 

The Human Dimension

Through it all, mediation is about people as much as law. Opponents who remain abstract are easy to demonize. Put them in a room, and they become real. Mediators who listen for personalities, histories, and emotions can steer conversations away from “who wins” toward “what works.”

That doesn’t mean glossing over technical or legal arguments. Parties still need a hard look at their cases. But once that’s done, the focus must shift. Litigation is costly and uncertain. A settlement, crafted with creativity, can usually serve everyone better. And we can make deals through mediation with benefits that would never be ordered by a court.

Key Takeaways

From years of experience, a few lessons stand out:

1. Opening statements are risky. Use them only if both sides see value.  Otherwise, exchange written mediation statements.
2. Preparation is crucial. Private letters or calls reveal what the exchanged statements cannot.
3. Joint sessions humanize the dispute. Even a short meeting matters.
4. Caucuses demand realism. Mediators must test assumptions with specifics.
5. Settlements require structure. Think beyond cash.
6. Apparent Impasse may signal the need for more information or new approaches.
7. People drive outcomes. Emotions and personalities shape resolution as much as law.

Conclusion

Mediating intellectual property disputes is part analysis, part strategy, part psychology. It’s not about declaring a winner but about guiding parties from courtroom thinking to business problem-solving.

The mediator’s role is to keep the conversation moving from “who wins at trial” to “how can we resolve this in a way that works for both sides.” That shift takes preparation, patience, and creativity. But when it happens – as it happens in more mediations that not -- it can save time and money, preserve relationships, and create solutions courts could never order.

In the end, intellectual property is about innovation. Mediation, when handled well, should be just as innovative.

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Note: This article is based on a book chapter I wrote for Professor Dwight Golann’s excellent book, Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates. (American Bar Association, 2021).  I had ChatGPT 5.0 summarize it, revised it extensively, and added some things I’ve learned in the last few years. The chapter is, of course, quite a bit more in depth.  Prof. Gollan’s book, a great resource for all sorts of mediation issues, is available from https://www.americanbar.org/products/