Articles and Video:
Generally, we mediators like to consider mediation as a safe process, one where the parties can be candid with one another, where they can say what they think, where they can develop and explore options, where they can even apologize if necessary, all without fear that their statements will be used against them later in court. After all, if they know their statements might be admissible in court, who would say something like: “I’m sorry I took out your spleen rather than ...
Seagate A Floodgate To Patent ADR?
(above, floodgates along the Bitan Dam by Poagao)The U.S. Supreme Court just denied review of Convolve Inc. v. Seagate Technology. Why do we care? Because in Seagate, the Federal Circuit reversed a long established precedent and announced a new and higher standard for obtaining treble damages in patent cases, which could have the impact of making some patent cases more receptive to mediation or other ADR processes. Prior to Seagate, a patent holder seeking to prove that a defendant...
Fake Fartman Found Failing
Sometimes you've got to wonder whether anyone really cares about intellectual property at all. Or class and culture for that matter. Take the case of the Pull-My-Finger Fred doll versus Fartman, the epic battle of the farting plush dolls. Now I'm not that far removed from teaching my boys about the incredible magical powers of the pulled finger not to understand how a Pull-My-Finger Fred doll could enjoy a certain amount of commercial success. (In fact I have a brother who probably rushed out...
From Michael Young
A day without mediate.com is a day without sunshine. For a profession that can be very lonely indeed, mediate.com is proof positive that we are not alone, and a welcome reminder that we still have so much to learn.
Fair Use Settlement Or A Mediation Heist? How A Stanford English Professor Settled A Copyright Action. . . And Then Recovered Her Attorneys Fees From The Estate of James Joyce
How did Stanford English Professor Carol Shloss, with the pro bono help of the Stanford Center for Internet and Society’s “Fair Use Project,” take down the Estate of literary giant James Joyce and its sophisticated legal counsel? How did she successfully mediate her copyright lawsuit, dismiss the action, and then recover all of her attorney fees and costs as the “prevailing party?” The answer: through some very clever maneuvering at mediation! 3 Comments
Mediation Confidentiality Trumps Malpractice . . . Barely
by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE! Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to ...
Are You Settled? Maybe Not . . .
What the “Tingler” and a Contaminated Property Can Teach You About the Enforceability of Mediated Settlement Agreements in California.
I walked into my last mediation blind. No briefs had been submitted, no pre-mediation conference calls, nothing. And so I had no forewarning on that early November morning as I offered Coffee and Tension-Easing Donuts to the disputing parties that I would soon come face-to-face with something I thought was purely mythical: A Mediator Ethical Dilemma. 7 Comments
Resolving Environmental Disputes With Environmental Team Mediation: A New Model
The fact is, there are some types of complex cases that simply do not lend themselves to efficient resolution by trial, whether jury trial or bench trial. While our court system does provide a mechanism that will, one way or another, resolve a dispute, it is not the system of choice for all disputes. In light of the special complexities of an environmental dispute, and the unique needs of the disputants, we suggest a team mediation approach, which we describe below.
Bottom Line Negotiating: How A Little Negotiating Wager Can Break That Settlement Impasse . . . Or Make You Money Trying
Bottom Line Negotiating is not the answer to all negotiating impasses. However, it may prove exactly what is needed to get past certain negotiating barriers, or provide some recourse to the erstwhile negotiator when faced with an unrealistic litigation opponent.
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