How to select a good Intellectual Property Mediator
Intellectual property (“IP”) is a complicated field of law, as anyone who practices in that area knows. Intellectual property disputes are often intricate – and each one is unique, since many disputes hinge on how multi-factor tests would be applied or interpreted by a jury. Therefore, IP disputes need a specific kind of mediator who is prepared to handle that type of case.
For many intellectual property practitioners, it can be challenging to find a mediator who’s experienced in that field. Even most retired judges were not on the federal bench and do not know much about IP law.
Qualifications of IP Mediators
The laws are changing as technology changes, so intellectual property practitioners need a mediator who is up to date with the latest changes and who understands the latest technology (especially for copyrighted code and/or patent cases). Sometimes, that can be hard to find when you are also looking for someone with legal training (particularly because intellectual property law is not tested on the bar exam, so not all attorneys are knowledgeable about that field of law).
Therefore, it is important for intellectual property practitioners to search for mediators who are experienced attorneys who know about the type of IP the dispute centers around (e.g., trademarks, copyrights, or patents). An attorney who is experienced in prosecuting trademarks/patents and handling infringement issues will be able to give both parties in the mediation the best perspective on the case in order to move the mediation forward – and lead the parties toward settlement.
A mediator who knows the elements of IP prosecution and/or infringement can go through each relevant element with the parties in detail and help them weigh the pros and cons of their cases (e.g., the fair use defense, consumer confusion questions, etc.).
Also important, though, is the mediator’s skills in helping parties communicate. A mediator who knows how to reality check with the parties regarding likely outcomes post-mediation so parties can make informed decisions during mediation is a huge asset when you are looking to settle a case.
Moreover, intellectual property practitioners are often searching for a mediator who will understand the created IP is like someone’s baby because of how much time and effort likely invested in it. Mediators who respect that the disputed IP is part of who the clients are will be able to communicate most effectively with the parties and, thus, will be most likely to help the parties reach a settlement.
Furthermore, it’s helpful if the selected mediator practices IP law because then that mediator will know what elements an intellectual property settelement agreement should include and can be prepared to draft an appropriate settlement agreement if a resolution is reached at mediation.
At CPLS, we understand the importance of selecting a mediator who is experienced in intellectual property law. Christy L. Foley is a mediator with a decade of experience who has focused her legal practice on IP issues for the past 9 years. She’s experienced in copyright and trademark prosecution as well as infringement issues, has a biotech background, and remains abreast of the latest trends in intellectual property law. If you need a trustworthy and knowledgeable IP mediator, then please give us a call at (407) 647-7887 or email Christy directly at CFoley@CPLSPA.com.