A common criticism of mediators is when they become “letter carriers.” This occurs when the mediator essentially moves between rooms simply restating what the other side has stated. Many mediations will eventually get to the letter carrier stage, but letter carrying at or near the beginning of an intellectual property (IP) mediation occurs when the mediator does not understand the subject matter and/or where the parties are not sufficiently prepared to be challenged during mediation.

Mediators are ethically barred from opining on the merits of a dispute. But that does not prohibit the mediator from asking challenging questions, known as reality testing, regarding IP-specific positions.

Selecting a Mediator IP disputes involve several unique issues: federal and state statutory law, IP registrations, prior use and/ or prior art. It is possible that there are also pending or decided administrative reviews by the Trademark Trial and Appeal Board or by the U.S.Patent and Trademark Office. 

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