Six Things You Should Know About Mediating Licensing Disputes
February 10, 2014
Savvy business people are looking to mediation as a way to cut the transaction costs of managing intellectual property disputes by avoiding lengthy litigation. Only a small number of costly patent infringement cases go to trial, and about 90% of these are resolved, often by entering into a licensing agreement for future use.
Mediation is a low-risk process. It has an impressively high success rate when conducted by an experienced mediator. Participants value the confidentiality that cloaks the process and also the control that they gain over the resolution of the dispute.
The Master Mediator
Looking My Way: It Is What It Is! Really?
March 10, 2014
Many of us have attended educational programs where a video is shown of two teams of students playing basketball. The audience is tasked to count how many times the ball is passed between players of one team. At the end of this short video the presenter asks the audience for the count. Answers vary widely. Next the audience is asked if anyone saw anything unusual. Many raise their hands and state that a gorilla walked through the court during the basketball play. Sure enough, when the video is replayed there the gorilla is, plain as day.
Professors Daniel Simons of University of Illinois at Urbana-Champaign and Christopher Chabris of Harvard popularized the “Invisible Gorilla” experiment by expanding research first started by Professor Ulric Neisser in 1975 (see bit.ly/19X5Avr). The Invisible Gorilla and its variations have been repeated numerous times, with video clips readily available online, including on YouTube (see, e.g., youtu.be/vJG698U2Mvo). This phenomenon has been called “Inattentional Blindness” (Professors Arien Mack and Irvin Rock in 1992; see box), cognitive capture, or cognitive tunneling. An individual is so focused on the task, internal thought, or an aspect of the visual environment that he or she fails to observe an unexpected stimulus. Professor Simons defines Inattentional Blindness as “the failure to notice a fully-visible, but unexpected object because attention was engaged on another task, event or object” (see bit.ly/KEP47m)
ADR PROCESS DESIGN
Collaborative Use of Technical Experts For Environmental and Construction Dispute Resolution
December 11, 2013
Disputes involving environmental and construction issues, like other highly technical disputes, commonly require the use of experts, probably one of the most expensive individual items in an adversarial dispute resolution process. This article looks at how technical experts can be used most cost effectively and productively, and can help to resolve disputes in a collaborative manner.
In traditional adversarial dispute resolution, particularly arbitration and litigation, the use of experts involves significant time and expense. This includes engaging initial technical advisors to evaluate the problem, identifying experts, getting the expert to review all information, producing drafts and final reports, taking depositions of the experts during discovery, and preparing experts to testify at hearings. The final adversarial phase for experts is the cross-examination of the expert at the hearing, where opposing counsel attempts to obscure facts, distort positions, and point out prejudices, thus creating a difficult job for the non-technical decision-maker to decide which expert is correct.