This week I had the opportunity to participate in an event organised by the Licensing Executives Society. We were discussing finding "win-win" solutions in IP disputes. It was fascinating to explore the possibilities in patent cases, trade mark infringements, allegations of passing off and copyright breach.
I recalled my career as a junior counsel appearing in cases in some of which, it now seems to me at least, we could have been much more creative in seeking solutions which commercial people needed.
A recent mediation experience in a patent matter revealed once again how often the real issues are very different from those which legal rights and remedies seek to address. If you don't get under the surface, the underlying problems may well re-surface again and again.
In the cause of being better negotiators, whether in mediation or directly with others, we discussed the importance of preparation and identifying objectives and priorities, and the utility of really trying to understand what the other side wanted. What are their needs and concerns? How can you find ways to address their objectives in order to maximise the opportunity of achieving those of your client or yourself?
We talked about benchmarking proposals against the alternatives in cost, time, commercial opportunity and reputational risk, about developing a variety of options (joint venture? license? assignation?) and about addressing the non-monetary and non-technical issues. We recognised the value of nipping things in the bud, of early intervention and human due diligence.
We concluded by asking: why mediate? To add value where traditional negotiation has not worked or is breaking down, to help break a logjam, to ask difficult questions and test reality, and to bring the key people together privately and help them find constructive solutions. It's not always appropriate in IP matters we agreed - but will often be a really useful further tool in the kit.