Mediating Intellectual Property Disputes
“Regardless of the situation, without suggesting mediation, it will never happen. The obvious risk is that other party(s) may say no, but this would have no effect on the actual case at hand. At least the parties would know where they stand.”
That being said, it is important to note that the risks of not mediating vary greatly depending upon which milestones have already passed in the litigation.
For example, if the bulk of expert deposition costs happen to rest on your client’s shoulders and these depositions have not yet occurred, it makes sense to consider mediation as an option prior to these costs accruing.
It is my experience that when cases do settle via mediation, one or more parties will invariably lament that they “should have mediated sooner”. Whether or not mediation would have been successful sooner will always be a speculative call—however—-it is important for intellectual property counsel to have at least presented it as an option.