There are three (3) primary ways that you can resolve an ongoing intellectual property dispute: litigation, mediation, or arbitration. Each have their own advantages and disadvantages. Mediation and arbitration are unlike litigation in that they happen out of court, but they have been shown to be effective in intellectual property disputes. Faro & Associates has extensive experience is each of these three alternatives.
Factors which dictate the selection of one, or a combination of the foregoing alternatives, are highly fact specific. Notwithstanding, the so-called “alternative dispute resolution” choices to litigation are by no means appropriate for all disputes – “one size does not fit all”. I personally believe that mediation is undesirable for dispute resolution because it presupposes that the parties are reasonable in their expectations and demands, which is seldom the case. Moreover, arbitration is not inexpensive, and may only be marginally preferable to a judicial proceeding. Accordingly, litigation is preferable as a preliminary step to alternative dispute resolution. The pending lawsuit impresses upon the parties that the claims are serious that there is a resolve to pursue them. Without such resolve, the settlement of the dispute does not have chance.
There is no easy answer to choose which form of dispute resolution is best for your case, but it behooves you to research mediation before entering into litigation. Both arbitration and mediation are potential alternatives for ending the conflict, but mediation tends to be more flexible. You have a say in how the process unfolds and what the final agreement looks like, which is unique from both arbitration and litigation. In some cases, you may be able to end your dispute more quickly and in a more mutually agreeable manner as opposed to litigation.
Mediation is not for every intellectual property case, though. Tensions can run high in cases involving alleged encroachment/violation of intellectual property rights; and the technical nature of such cases are often insoluble, requiring the disputing parties to air their concerns in court.
Although mediation is very effective in IP cases, it’s also voluntary and requires both parties to be willing to compromise. Sometimes things just don’t work out that way in a case and that’s why one party or the other seeks litigation or arbitration in order to get a binding decision. This is a benefit afforded by the legal system. There are some cases where mediation and negotiation simply don’t work and that’s when it’s time to retain an attorney.