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Most mediators will agree that a key to reaching a settlement is to have the right people in the room at the mediation.  Unless all interested parties are represented by people having the authority to settle on their behalves, settlement is unlikely at the mediation session.  In the patent infringement context, this typically means that the attendees for the patentee should include a person authorized to negotiate and approve a settlement for it and, where the matter is in litigation, lead outside counsel.  The presence of the latter is particularly important where outside counsel has a contingent fee arrangement with the patentee and therefore a direct financial interest in a settlement; the interests of both must be satisfied.

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James Amend

James M. Amend, Esq. has more than 40 years of intellectual property experience, including seven years as Chief Circuit Mediator for the United States Court of Appeals for the Federal Circuit. He is based out of JAMS Chicago, but is available nationwide. He can be reached at jamend@jamsadr.com.

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