New Article in ABA Section of Intellectual Property’s Landslide Magazine
Just out in Landslide Magazine: “A Dozen Tips for Technology-Related Mediations and Arbitrations” by Harrie Samaras and David Allgeyer. November/December 2018 Issue, page 16.
In this issue, Harrie and I take up the dozen most important things to bear in mind when mediating or arbitrating technology-related disputes. We explain the following tips in detail:
Mediation
Consider the benefits for your case. Some cases are more likely to benefit than others.
Set realistic expectations. Mediation is rarely a “one and done” process.
Choose your mediator carefully. Do your homework!
Prepare yourself to mediate. It’s not a trial, but it is just as important. Careful investigation and getting the right people to the mediation are among the things you must do.
Prepare party representatives. Take whatever time it takes to get ready for the mediation.
Plan ahead to avoid obstacles. Figure out what could stall negotiations and come up with a strategy to overcome that.
Arbitration
Determine whether arbitration is best for disputes that could arise. Not all contract disputes may be best resolved by arbitration, but many are.
Draft a viable arbitration clause. Get the clause right to realize the benefits of arbitration.
Think differently about experts. The perfect expert may be different in arbitration than litigation.
Get ready for the preliminary hearing. This is a key to taking advantage of arbitration.
Be flexible, but be persuasive. Embrace the flexibility of arbitration to save time and money, but you still need to persuade your decision-maker.
Plan to “win” the arbitration or build in an arbitral appeal. The standard of review of an arbitration award is much different than a court judgment, unless you provide for an arbitral appeal.
Of course, this is just an overview of points. Please have a look at the article for the specifics on these tips.
For even more information on mediating and arbitrating technology-related disputes, you may be interested our books available from shopaba.org and on Amazon:
David Allgeyer, Arbitrating Patent Disputes, A Practical Guide (ABA IPL Section 2017)
Harrie Samaras, ADR Advocacy, Strategies, and Practices for Intellectual Property and Technology Cases (2d Ed. ABA IPL Section 2017)