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WASHINGTON � The last of the federal appellate courts to adopt a mediation program, the U.S. Court of Appeals for the Federal Circuit, recently reported an overall settlement rate of 42% in patent and nonpatent cases taken for mediation last year. “The statistics, while consistent with what other circuits have been doing, are amazingly and surprisingly high from what I expected,” said Kevin R. Casey, chairman of the intellectual property practice group at Philadelphia’ Stradley Ronon Stevens & Young and former president of the Federal Circuit Bar Association. “I figured if they could settle 10%, the program was worth it.” Appellate courts began adopting mediation programs in the late 1970s, according to Casey and others. Until about three years ago, resistance at the Federal Circuit was strong. At that time, many of the judges believed that patent cases, in particular, were not well suited for mediation either at the trial or appellate level. They are complex cases with multiple issues, disparate money demands and long-entrenched expectations. Pushing and cajoling Chief Judge Paul Michel became a strong supporter of mediation as a way to help ease the court’s burgeoning docket. The bar pushed and cajoled while judges changed and judges’ views changed. The circuit court launched a pilot mediation program in 2005. In September 2006, the court adopted a permanent program and subsequently hired former Kirkland & Ellis partner James M. Amend as chief circuit mediator and the court’s former senior staff attorney, Wendy L. Dean, as circuit mediation officer. The program has 18 pro bono mediators. Through Dec. 31, 2007, the program settled 39 appeals: 34 patent and five nonpatent. Mediation was terminated in 53 appeals: 43 patent and 10 nonpatent. The patent success rate was 42% and the nonpatent success rate was 33%. “The Court’s Mediation Program continues to evolve,” Michel said in his last state of the circuit address. “About half of the appeals filed have always dropped out spontaneously before adjudication. We hope our enhanced mediation program will increase settlements further.” Most circuits report settlement rates of between 35% and 45%, said Casey, who added that the programs have enabled courts to accommodate increased filings without additional judges, saved money and increased party satisfaction. The program’s success at the Federal Circuit is “a testament to the skills of the mediators and to the parties who, although on appeal, see the benefits despite any risk to themselves,” Casey said. And, a final reason for a strong success rate in a good program, he said, is the ability to pick carefully the cases suited to mediation.

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