Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

At South by Southwest this week I attended a program on patent reform featuring representatives from both sides in the “patent troll” debate. Though there was disagreement on the nature and extent of the problem, most of the panelists seemed receptive to proposed solutions such as making it harder to get patents issued, imposing stricter pleading requirements, regulating demand letter practices, or allowing fee-shifting to discourage meritless litigation. I wondered, however, whether increasing the size of the hurdles on the litigation track might in some cases only give parties new issues to litigate over. If the cost of litigation is what gives patent “trolls” leverage to demand settlements, then the solution might instead lie in reducing the cost of litigation. Maybe […]

While not very impressive grammatically, the statement published today on Tesla’s website that “all our patent are belong to you” might have some earthshaking consequences in the intellectual property world. Tesla has decided that in the interest of developing an electric car market and battery infrastructure, they will no longer bring patent infringement lawsuits against anyone using their electric car technology in good faith. Perhaps there is an element of “save the world” altruism in this gesture, as Tesla claims to be motivated by a desire to get all gasoline-powered vehicles off the road. And Tesla acknowledges that they themselves can’t possibly build enough electric cars to accomplish that goal. But Tesla’s new policy also seems like a remarkable recognition that the […]

Yesterday I had a chance to help train mediators for a California Lawyers for the Arts program that provides  mediation and other ADR services for artists. Calfornia Lawyers for the Arts also runs a well-developed lawyer referral program. What was interesting to me about the group’s ADR program is the separation they try to maintain between legal services and ADR services. They take care to screen new cases to determine whether the client needs legal advice or resolution of a dispute, and they instruct the program’s mediators not to give legal advice during mediation sessions, instead only to suggest to participants that they consult an attorney if they feel they need legal advice. In mediation parlance, it’s a facilitative, rather […]

One of the touted benefits of ADR is that it allows parties to design their own dispute resolution process specially suited to their needs. Problems can arise, however, if a court is subsequently called upon to try to figure out what to call the process the parties have invented. A court might need to do that to decide what rights and obligations the parties have assumed under their process. A recent Federal Circuit case, Kimberly-Clark v. First Quality Baby Products, provides a nice illustration of this problem. (Thanks to the Disputing blog for bringing it to my attention.) In a series of patent infringement disputes between two consumer products giants Kimberly-Clark and Proctor & Gamble, the parties crafted a series […]