Intellectual Property,
Alternative Dispute Resolution
Apr. 18, 2013
Challenges in 'soft' intellectual property mediation
Clients in the "soft" IP cases pose special challenges because certain concepts, such as "fair use" and "substantial similarity" require fact finders to apply imprecise balancing tests and subjective assessments.
Denise Madigan
Mediator, MadiganADR
Denise has been a full-time mediator and adjunct professor for over 25 years. She also has taught mediation to thousands of lawyers, judges and other professionals all over the world.
One of the most common challenges in any mediation is client resistance to "reality checks," when counsel or the mediator try to explain why the risks of litigation are greater than a client wants to believe. Clients in the "soft" IP cases can pose special challenges because certain concepts, such as "fair use," "likelihood of confusion" and "substantial similarity" require fact finders to apply imprecise balancing tests and highly subjective assessments.
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