Some clients in California intellectual property disputes fear that committing to negotiations too early will decrease the chances that they will receive a fair settlement. Others feel that agreeing to mediation will signal weakness to the other party. As an attorney advising the best interests of your client, how you present and explain mediation process can help to dispel these and other myths of mediation that might unnecessarily inhibit the chances of a successful negotiation.
There are numerous reasons that your client may wish to avoid litigation, and this is a helpful way to frame mediation as an alternative. Just a few of the reasons to avoid going the litigation route include bad publicity, the time management has to spend dealing with the dispute, costly legal fees, the cost of retaining experts and conducting depositions, and the uncertainty of an outcome where the judge is in charge. Mediation, when structured in a thoughtful and deliberate manner, can help to alleviate some of these common concerns. Approach the issue from your perspective as an attorney and share the possibility of uncertainty in the courtroom. Many clients find the opportunity to help create their own outcome very appealing — and mediation offers an important advantage over litigation in this way.
Even if the lawsuit has been filed, there’s still time to talk options. Of course, the fact of filing a lawsuit communicates that your client is serious about the matter, but fighting in court may not be the best solution. Perhaps your client just wants the assurance of knowing that the other side takes them seriously. In any event, it’s never too late to suggest intellectual property mediation.