Just out in Landslide Magazine: “A Dozen Tips for Technology-Related Mediations and Arbitrations” by Harrie Samaras and David Allgeyer. November/December 2018 Issue, page 16.
In this issue, Harrie and I take up the dozen most important things to bear in mind when mediating or arbitrating technology-related disputes. We explain the following tips in detail:
- Consider the benefits for your case. Some cases are more likely to benefit than others.
- Set realistic expectations. Mediation is rarely a “one and done” process.
- Choose your mediator carefully. Do your homework!
- Prepare yourself to mediate. It’s not a trial, but it is just as important. Careful investigation and getting the right people to the mediation are among the things you must do.
- Prepare party representatives. Take whatever time it takes to get ready for the mediation.
- Plan ahead to avoid obstacles. Figure out what could stall negotiations and come up with a strategy to overcome that.
- Determine whether arbitration is best for disputes that could arise. Not all contract disputes may be best resolved by arbitration, but many are.
- Draft a viable arbitration clause. Get the clause right to realize the benefits of arbitration.
- Think differently about experts. The perfect expert may be different in arbitration than litigation.
- Get ready for the preliminary hearing. This is a key to taking advantage of arbitration.
- Be flexible, but be persuasive. Embrace the flexibility of arbitration to save time and money, but you still need to persuade your decision-maker.
- Plan to “win” the arbitration or build in an arbitral appeal. The standard of review of an arbitration award is much different than a court judgment, unless you provide for an arbitral appeal.
Of course, this is just an overview of points. Please have a look at the article for the specifics on these tips.
For even more information on mediating and arbitrating technology-related disputes, you may be interested our books available from shopaba.org and on Amazon:
David Allgeyer, Arbitrating Patent Disputes, A Practical Guide (ABA IPL Section 2017)
Harrie Samaras, ADR Advocacy, Strategies, and Practices for Intellectual Property and Technology Cases (2d Ed. ABA IPL Section 2017)