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PETER N. DETKIN, INTEL CORP., SANTA CLARA, CALIF. As head of litigation for Intel, Detkin deals with patent matters on a regular basis. He says that he finds mediation effective in certain situations. For instance, he won’t use mediation with adverse parties he calls “patent trolls,” companies that buy underenforced patents and then make patent infringement claims against companies such as Intel. Although the companies often see themselves as protectors of intellectual property rights, Detkin sees them as trolls seeking a windfall profit for doing nothing. In those cases, Detkin believes that entering into mediation would be a waste of everyone’s time. “They have a patent. They have a claim. They want money, and I’m not going to give it to them,” he says, commenting on the futility of such a mediation. Detkin has noticed a slight increase in the use of mediation in intellectual property matters. He says professional mediators have become more comfortable with intellectual property disputes, probably because mediators are now better trained in that law. In addition, Detkin notes that Intel does mediate in other types of cases. According to Detkin, mediation is helpful in cases where the company is opposed by an individual, instead of by a corporation. In these cases, such as personnel matters and personal injury cases, Detkin says that skilled mediators have made communication and resolution much easier. CARLOS G. ORTIZ, GOYA FOODS INC., SECAUCUS, N.J. Ortiz chooses to negotiate rather than mediate. Although he serves on the board of directors of the American Arbitration Association (AAA) and is a proponent of alternative dispute resolution, he would rather negotiate one-on-one with an adverse party. He uses arbitration in certain labor and contractual matters but keeps other cases in-house for negotiation with opposing counsel. He has found that Goya can negotiate matters effectively and inexpensively with its own staff. Ortiz, however, is not averse to mediation. He sees the advantage of having an expert neutral — the professional arbitrator or mediator who handles the process. “If we should ever have a case that is so complex that it requires mediation, we would use it,” he says. Ortiz added that although AAA is known for conducting arbitrations, the organization also provides mediation services, and that is where he would go to get a mediator. Until he has to go outside, however, Ortiz will negotiate in-house. “It’s part of my job,” he says. MIKE FENNELL, TRAIL BLAZERS INC., OREGON ARENA CORP., PORTLAND, ORE. Fennell serves as general counsel of both the Portland Trail Blazers National Basketball Association team and of Oregon Arena Corp., the company that owns The Rose Garden, the Portland arena where the team plays. His decision on whether to use mediation is sometimes not a decision at all — in some cases, mediation is mandatory. Fennell has used mediation both in voluntary and mandatory situations. In a voluntary situation, a federal judge suggested mediation in a case involving the Americans with Disabilities Act. The case had been pending for some time, and litigation expenses were mounting. “We had confidence in the mediator the judge recommended, so we decided to invest a day in mediation,” Fennell says. Fennell, however, has also been involved in cases where mediation was mandatory, including one construction matter where mediation was required contractually before the case went to arbitration. DOUGLAS EDWARDS, WACHOVIA CORP., CHARLOTTE, N.C. “At Wachovia, we have a policy of aggressively defending lawsuits,” says Edwards, noting, however, that mediation plays an important role in the company’s defense policy. Wachovia uses mediation extensively in retail brokerage arbitrations. For Edwards, the strategic decision is whether to mediate sooner rather than later. Recently, Wachovia mediated a large trust dispute because it wanted the other side, a sophisticated company, to hear Wachovia’s position “rather than have it filtered through its lawyers,” Edwards says. He sees two principal keys to effective mediation. “First, we carefully plan our strategy for the mediation,” he says. “This includes not only a determination of the level at which we would be willing to settle a case, but also what we wish to communicate about our case,” he adds. In addition, mediation can serve a strategic fact-finding purpose, Edwards says. When analyzing an opponent, Wachovia uses mediation “to get a better take on their case, lawyers and tactics,” he says. Edwards’ second key to effective mediation is the mediator. “A session with a mediator seeking to ‘split the baby’ is a waste of our time,” he says. “We seek, wherever possible, a strong mediator willing to communicate a realistic assessment of the case to both sides,” he says, adding that he seeks mediators who encourage a business approach and discourage the traditional posturing of the parties over legal issues.

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