In many instances, patent disputes occur between large, well-established companies, and smaller start-ups or foreign (copycat) companies looking to break into the United States market. In these "“David versus Goliath"” situations, it may seem absurd to believe that the parties could resolve their dispute(s) via mediation, rather than through the more expensive and less satisfactory litigation route. For one thing, "Goliath"” usually wants to stomp out their competition, and litigation is a popular means to apply financial pressure on "“DavidÂ".

However, no matter whether a company is the "David" or the "“Goliath"” (or the patent owner or the alleged infringer), mediation is always available as a path to resolve even the most complex and contentious intellectual property disputes. The real hurdle is whether the parties are willing to initiate mediation as an alternative path.

The only way mediation can become a viable option is for one of the parties (or a Judge) to approach the other(s) with an offer to stay the litigation proceedings in lieu of mediation. Frankly, if a party is interested in mediation, they should have the conviction to extend an overture to their adversary(s) to see if they would be willing to mediate, rather than gamble on litigation.

Of course, timing is everything. So when is a good time to broach the subject of mediation? There are a number of opportunities: First, one could argue that the best time to mediate is as soon as possible. More objective views include raising the issue of mediation after discovery or a pivotal event during pre-trial activities such as claim construction, or a ruling on a preliminary injunction request or summary judgment.

The more universal answer is that it depends on the particular facts and disposition of the case. If momentum has shifted to a particular side based on a favorable ruling on claim construction, preliminary injunction or summary judgment, the side with the momentum may have leverage to back up their interest in pursuing mediation. Alternatively, the party(s) on the loosing end may feel as though they do not have any credibility to ask for mediation, let alone the desire to appear more vulnerable because they are asking for an alternative means to settle the case.

Regardless of the situation, without suggesting mediation, it will never happen. The obvious risk is that the other party(s) may say no, but this would have no effect on the actual case at hand. At least the parties would know where they stand.

In Why Mediation?, James Pooley states that nearly 97% of all intellectual property disputes are resolved before trial. If it looks like a patent case is not going to fall in the 3% that will go to trial, then why not mediate? The benefits far outweigh the negatives of intellectual property litigation, and it affords the parties the means to resolve their dispute(s) to their own satisfaction in a more cost efficient and more civil manner. However, the onus is on the parties to suggest mediation because it won't take place on its own. If you don't ask, you won't receive!