As an IP lawyer, I've participated in several mediations to resolve disputes that are being litigated. The parties are usually greeted by a settlement judge (appointed by the Court) and then separated into different camps (or "caucuses"). The judge then proceeds to shuttle back and forth between the two camps. She explains the weaknesses of the parties' cases, and works to convince them that a settlement makes sense, that the jury won't get this or that right, and that in the end the parties are better off formulating their own resolution than paying their attorneys to get them through trial and a result that is potentially much more difficult to live with (not to mention that the judgment will then be appealed and cost more money to "resolve"). Faced with this news after seeing their litigation bills skyrocket in typical IP discovery, many IP case settle in a matter of hours.
I recently attended a very interesting mediation training program that takes an wholly different approach to mediating all types of disputes. The method keeps the parties together in the same room as long as possible (if not for the entire mediation). The theory requires the parties to take more responsiblility for their dispute, take an active role in designing how the mediation will be conducted, brainstorm together about potential results, not look to the neutral mediator to "judge" the outcome of the case, and own the resolution. This method, developed by Gary Friedman over 20 years ago, grew out of Friedman's divorce law mediation practice, but I think it could apply to almost any dispute. I have to say that in the IP-litigation field, I've never seen a mediation conducted this way. This made me me consider why that is the case. Perhaps it is because confidential/sensitive information of companies is often in dispute, and parties are (rightfully) very nervous about revealing their "crown jewels" to their competitor who is on the other side of the mediator's table. Or perhaps it's because divorce law is more "emotional" and businesses who litigate IP cases are just not considered "emotional." Or perhaps it's because the traditional "settlement conference" model of shuttle diplomacy is what settlement judges are used to doing, parties and their lawyers in turn are relatively comfortable with it, and it works reasonably well to clear the court's dockets of cases that can otherwise be settled. (It's also rather speedy. The fact that the clock is ticking and the settlement judge only has "so" much time to devote to this, the parties feel the pressure to get the dispute resolved.)
These reasons, however, seem unsatisfactory to me. First, while confidential information is often at issue in an IP dispute, tons of confidential information is disclosed in litigation through discovery (if not to the party, then to its in-house and/or outside counsel). Second, businesses are made up of people who have emotions. To say that because a dispute is between to two (or more) legan entities it will not involve human emotions is nonsense. I've seen some witness-employees who's emotions about an IP dispute get completely ignored (and trampled) in the bully-ish litigation process. The emotional toll of being a trial witness can wear on the employees of a company just as it can wear on a party in a divorce case. The creator of a work, the inventor of an idea, the sales person who's lost tens of thousands of dollars in income because of the other party's wrongdoing all have invested emotional interests in the litigation and its outcome. In house counsel -- sometimes the decision makers in the party's ability to settle -- are often emotionally charged about the dispute, protecting their internal clients, and sometimes saving face with management. All of these emotions defy the proposition that business cases are not "emotional". Third, a status quo "shuttle-diplomacy-works-well-enough" reason isn't in my mind a great reason to keep things as they are, especially when other methods might be employed to bring about a long-lasting business solution and let companies go forward peacefully to bring good products and services to market.
I wonder what others have thought about this question. I know Friedman has worked on many matters between businesses and his circle of mediators have had much experience with these sorts of questions. But is this method -- keeping everyone together and making them own the problem, process and resolution -- used very often? Does it expect too much from the business entities? Is it efficient or risky? I'm curious what others think, and would look forward to hearing from you if you have experiences that differ from mine in mediation settings.