Mastering mediation strategies for successful IP settlements

Intellectual property (IP) cases often involve complex legal issues, but most ultimately resolve through settlement. Mediation is a common and effective means of achieving resolution. To maximize the likelihood of success, attorneys must prepare thoughtfully and strategically. In a recent Daily Journal article, Claude M. Stern, a JAMS neutral with extensive experience in IP matters, outlines five essential steps every lawyer should take before entering mediation.

1. Identify and Analyze the Best and Worst Facts

Attorneys should conduct a comprehensive and honest review of their case. This includes assessing both favorable and unfavorable facts related to client credibility, witness reliability, legal claims, judicial history, and economic realities. Mapping these facts to specific claims and defenses helps clarify the strengths and risks associated with each aspect of the case.

2. Share All Facts with the Client, Including the Difficult Ones

Clients should receive a full and candid assessment before the mediation begins. Discussing negative facts in advance allows clients to adopt more flexible positions and prevents them from being caught off guard during discussions with opposing counsel or the mediator.

3. Prepare for the Mediator’s Hardest Questions

Experienced mediators are skilled at identifying case vulnerabilities. Attorneys must anticipate and be ready to address challenging questions related to liability, damages, legal precedent, or settlement obstacles such as third-party funding. Honest, thoughtful responses build trust and credibility during the process.

4. Perform a Realistic Settlement Value Analysis

Using tools such as decision trees or expected value models helps quantify the case’s potential outcomes. Including transaction costs like legal fees in this analysis creates a more practical settlement range and helps shift focus from best-case scenarios to realistic goals.

5. Enter Mediation Ready to Listen, Learn, and Negotiate

Successful mediation requires open-mindedness. Attorneys and clients should be prepared to take in new information, reconsider their assumptions, and engage in genuine negotiation. Even if the case does not settle immediately, flexibility during mediation can influence future progress.

Read the article below to learn more:

Daily Journal