lott & friedland, p.a., coral gables, florida how to “win” in mediation of intellectual...
TRANSCRIPT
Lott & Friedland, P.A., Coral Gables, Florida
How to “Win” in Mediation of Intellectual Property
CasesLeslie J. LottLeslie J. Lott
Lott & Friedland, P.A.Coral Gables, Florida
Lott & Friedland, P.A., Coral Gables, Florida
Winning
• Best Possible Result Best Possible Result • Mediation is ToolMediation is Tool• PreparationPreparation
Lott & Friedland, P.A., Coral Gables, Florida
Who/What/Where/When/Why?
• Who are the players ?Who are the players ?• What is mediation and what can What is mediation and what can
result from mediation?result from mediation?• Where are parties in relation to Where are parties in relation to
each other?each other?• When will mediation be optimal?When will mediation be optimal?• Why are we here?Why are we here?
Lott & Friedland, P.A., Coral Gables, Florida
Why are we here?
• Courts order mediationCourts order mediation• Growth in mediation across Growth in mediation across
countrycountry• Mediation worksMediation works
Lott & Friedland, P.A., Coral Gables, Florida
Who are the Players?
• ClientClient• Adverse PartyAdverse Party• Opposing CounselOpposing Counsel• MediatorMediator
Lott & Friedland, P.A., Coral Gables, Florida
Client
• Sophisticated/Knowledgeable?Sophisticated/Knowledgeable?• Familiar with litigation ?Familiar with litigation ?• Attentive?Attentive?• Time/resources to assist?Time/resources to assist?• Confidence in counsel?Confidence in counsel?• Familiar with facts/merits?Familiar with facts/merits?• Attitude toward MediationAttitude toward Mediation
Lott & Friedland, P.A., Coral Gables, Florida
Adverse Party
• AttitudeAttitude– legitimate business dispute legitimate business dispute – hostile/distrustfulhostile/distrustful
• AttentivenessAttentiveness– familiar with casefamiliar with case– case in hands of lawyerscase in hands of lawyers
• Ulterior motiveUlterior motive– business advantagebusiness advantage– contingencycontingency
Lott & Friedland, P.A., Coral Gables, Florida
Where?
• Existing business relationshipExisting business relationship• Different trade areasDifferent trade areas
– geographic areasgeographic areas– channels of tradechannels of trade
• Nature of disputeNature of dispute– good faith errorgood faith error– deliberate misconductdeliberate misconduct
Lott & Friedland, P.A., Coral Gables, Florida
Opposing Counsel
• Reasonable view of caseReasonable view of case• Knowledge of substantive lawKnowledge of substantive law• ObjectiveObjective
– ““scorched earth” scorched earth” – reasonable resultreasonable result
Lott & Friedland, P.A., Coral Gables, Florida
Mediator
• Only party you may selectOnly party you may select– critical to outcomecritical to outcome
• CredibilityCredibility• Substantive knowledgeSubstantive knowledge• TemperamentTemperament
– forcefulforceful– conciliatorconciliator– combination of bothcombination of both
Lott & Friedland, P.A., Coral Gables, Florida
What?
• What is Mediation?What is Mediation?• Most likely scenariosMost likely scenarios• What can result from mediation?What can result from mediation?
Lott & Friedland, P.A., Coral Gables, Florida
What is Mediation?
• Facilitated negotiationFacilitated negotiation• Tool, not objectiveTool, not objective
Lott & Friedland, P.A., Coral Gables, Florida
Most likely scenarios
• Optimal SituationOptimal Situation– counsel evenly matched/knowledgeablecounsel evenly matched/knowledgeable– sophisticated clients/someone actually in sophisticated clients/someone actually in
chargecharge– legitimate business disputelegitimate business dispute
• Worst case scenarioWorst case scenario– vast disparity in equitiesvast disparity in equities– ulterior motiveulterior motive
• ImbalanceImbalance
Lott & Friedland, P.A., Coral Gables, Florida
What Result?
• Negotiated settlementNegotiated settlement• Simplify issues for determinationSimplify issues for determination• Expedited/cooperative discovery Expedited/cooperative discovery
scheduleschedule• Dispute resolution agreementDispute resolution agreement
– arbitrationarbitration– submission to expert neutralsubmission to expert neutral– other procedureother procedure
Lott & Friedland, P.A., Coral Gables, Florida
When?
• Before litigationBefore litigation• Pleading stagePleading stage• After documentary discoveryAfter documentary discovery• After deposition discoveryAfter deposition discovery• After preliminary injunction rulingAfter preliminary injunction ruling• Pre-trial stagePre-trial stage• During trial or pending appealDuring trial or pending appeal
Lott & Friedland, P.A., Coral Gables, Florida
What is the Client’s Objective?
• Win at all costsWin at all costs• Business advantage/RetaliationBusiness advantage/Retaliation• Get back to businessGet back to business• InjunctionInjunction• Money DamagesMoney Damages• Damage controlDamage control
Lott & Friedland, P.A., Coral Gables, Florida
How?
• Be PreparedBe Prepared• Know your objectiveKnow your objective• Be flexibleBe flexible• Take charge of processTake charge of process• Get it in writingGet it in writing
Lott & Friedland, P.A., Coral Gables, Florida
How to “Win” in Mediation of Intellectual Property
CasesLeslie J. LottLeslie J. Lott
Lott & Friedland, P.A.Coral Gables, Florida
www.patentfla.com