Tag: Mediation

Posted on

She-Hulk: Patent smash!

Like it or not, the Incredible Hulk smashes stuff. The Hulk at his core wants to defend the innocent from harm, but he also causes an enormous amount of suffering as he lays waste to anything in his berserk path. Patent litigation can feel like a collision with the Hulk. Both patent owners and alleged infringers will often feel smashed by patent litigation, regardless of who prevails. As patent litigation plods forward, it can abruptly careen out of control in startling ways. It’s kind of like the Hulk, who gains more gamma-radiation strength the angrier he gets. And like litigants trying to manage patent proceedings, Bruce Banner (the Hulk’s alter ego who is a brilliant scientist) cannot constrain the Hulk no matter how hard he tries.

Would you have guessed that Bruce Banner’s cousin, Jen Walters, became embroiled in patent litigation? By day, Jen is an attorney juggling client matters, but off the clock she’s the She-Hulk kicking bad guy you-know-what. While the Hulk behaves as a raging brute, Jen retains her intelligence and controls her temper as the She-Hulk, who gained her gamma powers from a blood transfusion with Bruce.

In the graphic novel, She-Hulk: Law and Disorder, Jen agreed to represent a patent owner, a widow of an independent inventor. The emerald heroine thought that she could quickly negotiate a settlement with the alleged infringer, the distinguished Tony Stark of Iron Man fame. However, Jen didn’t get to meet with Tony. Instead she was intercepted by Tony’s lawyer, who gave her the run-around. Jen abandoned negotiations, saying, “I’ll just see you in court.” But in court, things did not go well for Jen as she got inundated with motions from her opposing counsel, and each motion required her response. Later, the jade giantess felt discouraged and confided to her client, “I was thinking that the scope of this thing is getting a little out of control—I thought this would be a two-minute chat with Tony Stark.”

Disagreeing Without Being Disagreeable

Before the chaos began with out-of-control scope, the She-Hulk had the right idea to try to negotiate early. But if she had followed the Understanding Method of conflict resolution promoted by Gary Friedman, her goal would have been more than just a two-minute chat. If she and her client had really desired to understand the problem and work to a solution, three discussions could have occurred in patent mediation. Patent mediation can be especially effective when attorneys, managers, and technologists all participate to discuss law, business, and technology.

First, Discuss the Applicable Law

With the Understanding Model, the first discussion is about the law. For the She-Hulk, this discussion would focus on intellectual property. As Gary Friedman points out, the purpose of discussing the law is for the attorneys to educate the managers about the impact of the law on their case. This discussion is preferably done in three stages:

  1. Each attorney explains the strengths of each side’s legal position. The emphasis here is the impact the law will have on the parties, more than the substance of the law.
  2. Each attorney then explores the risks of each side’s legal position. This makes the law understandable for the managers who are already experienced with SWOT to strategically analyze business weaknesses.
  3. Next, each attorney describes the practical consequences of going to court if an agreement is not reached. Often, this is a description of the costs to attempt to reach a favorable ruling.

This systematic legal conversation could have provided the She-Hulk with an opportunity to share with her opposing counsel a cooperative, rather than an adversarial, view of the legal reality facing her client and Tony Stark. Such a cooperative view would have helped her client and Tony find a mutually favorable outcome.

Second, Discuss the Business Issues

After the managers understand the legal realities facing their companies, they discuss their business realities. Depending on the relationship between the parties, this discussion can take many forms, as mangers explain their business situation to each other. For the She-Hulk, her client could have explained to Tony Stark that she was in possession of additional repulsor technology from her deceased husband, and that she would like to license the trade secrets to Stark Industries, which could have significantly benefited Iron Man.

Third, Discuss the Technology

In patent mediation, it is not enough to understand the legal and business realities. Everyone should also understand the realities around the technology. To do that, technologists from both companies meet together to understand the technologies as presented in the patent disclosure and as implemented in the alleged infringement. In the She-Hulk’s case, there was a lot to understand around the repulsor technology that technologists could have clarified.

Negotiate Based on Understanding

After these three discussions have occurred, the parties can negotiate together to find a resolution. Of course, this patent mediation process is significantly longer than a two-minute chat that the She-Hulk had anticipated. While the process may appear time consuming, it could have avoided her client’s courtroom confrontation and empowered her client to determine beneficial settlement proposals.

Calm the Rage

Patent litigation is hard on everyone, even for someone as tough as the She-Hulk. Before getting too entangled in such a clash, it is prudent to try to reach an agreement through patent mediation as early as possible. But even with early mediation, both plaintiffs and defendants may feel Hulk-like rage at the patent enforcement process. Please remember that while patent litigation is often a grueling course of action to have a patent case decided, our patent system has historically been a world-class empowerment of citizens from all walks of life to be inventors. According to Marshall Phelps, a former VP at Microsoft:

The world’s first democratized patent system bequeathed to us by our Founders was the crucial engine that powered our industrial growth in the nineteenth century and made us the preeminent economic super power that we are today.

Speaking of our country’s Founders, in the next post we’ll look at a Founder’s own ravaging encounter with alleged patent infringement. His name? None other than Thomas Jefferson.

Image: “Universal She-Hulk” (CC BY 2.0) by JD Hancock.

Source: Friedman, Gary, and Jack Himmelstein. Challenging Conflict: Mediation Through Understanding. American Bar Association, 2008, pp. 137-69.

Source: Phelps, Marshall, and David Kline. Burning the Ships: Intellectual Property and the Transformation of Microsoft. Wiley, 2010, pp. 153-67.

Posted on

Bridge of Spies: Pre-mediation conference avoids being left out in the cold

In Stephen Spielberg’s movie Bridge of Spies, Tom Hanks portrayed Jim Donovan, an attorney who engaged in an historical negotiation. During the Cold War, Jim was enlisted by the CIA to be the negotiator in an exchange of accused spies. This exchange took place on the Glienicke Bridge spanning between East Germany and West Berlin. However, before the prisoner exchange occurred, Jim had to enter into negotiations with the USSR and East Germany. These negotiations had a frosty start.

As portrayed in the movie, the negotiations were preceded by Jim’s sleeping in a damp and cold cottage on the outskirts of West Berlin, instead of in a welcoming and warm hotel. On February 3, 1962, the day Jim was to make contact with his Soviet counterpart, he walked alone through the icy streets of East Berlin, only to be robbed of his overcoat before finding his way in the snow to the Soviet embassy. There, while trying to regain his composure and warmth, he was accosted by a cacophony of confusion from three KGB imposters who claimed to be the relatives of Rudolph Abel, the accused Soviet spy. Jim quickly realized that the clamorous family was fake. While Jim needed to overcome his body’s chill, he did not lose his cool as a negotiator.

Pre-mediation conference call is a warm up for negotiation

This movie scene illustrates the importance of pre-mediation conference calls. The purpose of having a phone call with a mediator is to remove as much uncertainty about the negotiation process as possible before the mediation begins. In the movie, Jim would have benefited from a call with a mediator to at least discuss with whom he was negotiating, confirm the exact time and place of the meeting, and receive specific directions to the conference room.

A goal of a pre-mediation conference call is to start a mediation with everyone being prepared to work hard and put their best thoughts forward. To reach this goal, here is a brief checklist of things that you can expect to be covered in a pre-mediation conference call:

  • Disclosure of any issues uncovered during a mediator conflicts check.
  • Explanation of the case status, such as last offers made.
  • Format of mediation, including expectations and goals.
  • Exchange of documents, including submission of summaries to the mediator.
  • Listing of who will participate in the mediation.
  • Description of any telephonic attendance requests.
  • Time and place of the mediation session.
  • Arrangement for snacks or meals and a discussion of any special accommodations due to health or schedules.
  • Decision of what each party is to bring as support materials.
  • Confirmation of mediator compensation.

The pre-mediation conference call addresses issues in advance so that, once the mediation session starts, everyone can focus on reaching a settlement. In other words, think of the pre-mediation conference call as a time to become educated about the upcoming mediation.

Advice from JFK about difficult negotiations

While we are thinking about the Cold War, it’s good to remember a quote from John F. Kennedy, who was president during Jim’s negotiations. JFK admonished the nation in his inaugural address:

Let us never negotiate out of fear. But let us never fear to negotiate.

Just as the Glienicke Bridge spanned the Havel River between West Berlin and East Germany, mediation is a process that can help parties span the dispute that is between them. Because the process is voluntary, even if a court orders parties to mediation, they don’t have to settle. To take JFK’s advice, knowing that you have control over your negotiated decisions, you don’t need to enter into mediation in fear. Nevertheless, because mediation is a confidential process that enables you and the other party to make informed decisions, you also don’t need to fear offering proposals that meet your needs. It’s as good a time as any to imitate Jim Donovan’s savvy determination to reach an agreement that you can live with and that puts the dispute behind you.

Image: “Bridge of Spies” (CC BY 2.0) by David Stanley.

Posted on

Law School: Attaining a license to serve

According to Bloomberg Business, law schools are receiving fewer applications from prospective students, resulting in law schools having to choose whether to reduce their class sizes or lower their admission standards. It appears to be getting harder for prospective students to make the financial and time commitments required by law school. This news report reminds me of when I was a first-year law student (what is called a “1L”). Back then, my law school’s admissions office asked me to describe my experience of being a law student. I was asked for this description to help educate prospective students about what they could expect from attending law school.

My 1L description of law school for the admissions office

You may be wondering for yourself what law school is like. From my prior perspective as a first year law student, I described acquiring a law degree as attaining a “license to serve” and provided the following analogies:

  • Law school is like learning to snowboard. Although you will start out on a gentle slope, you will find that both feet being strapped onto a board will result in constantly falling flat on your back. It is a tiring and painful experience until you learn to not catch your board’s edge and move on to steeper slopes. As a beginning law student, you will find that your response to a professor’s question will inevitably fall flat, which will leave you frustrated. Although you will read a tremendous load of cases, it will take time for you to catch a judge’s meaning. Over time, however, you will begin to master the material and will gracefully snowboard down the law school mountain.
  • Law school is like a kindergartner going to a candy store. Although the store has so many sweets from which to choose, the child only has a small amount of change. No matter what candy the child buys, the youngster will leave the store feeling as if there are other treats that should have been selected. [Law School] has more opportunities than you can possibly have time to do. Take a look at the number of clinics that are offered or try looking at [the law school newspaper] to choose which of the many speaker-lunches you would like to attend in any one day. No matter how many activities you choose to do, you will always feel as if there is one more you should have done.
  • Law school is like a telescope. If you look through it upside-down, everything gets smaller and further away. But when you look through the telescope the way it is meant to be, objects that are distant become clearer and closer. If you look at law school upside-down, you will worry about grades and become self-focused through competition. Looking at law school the way it is meant to be, you will build a community of friends and learn how to serve.
  • Finally, law school is unlike anything you will have ever done before. If it were easy to describe, the analogies would not be necessary. I advise you to talk to as many lawyers and law students as you can. Discuss your goals and expectations with them so that you are prepared for all that law school has to offer.

If you are interested in going to law school, I hope these analogies provide a useful first-year-student perspective for you to make your decision regarding entering this service profession.

The privilege of serving people at an impasse

Speaking of attaining a “license to serve,” it is a privilege for me to be a mediator who can serve my community by helping people resolve their conflicts. It is an honor to assist people who are at an impasse because, as William Ury advised in his book Getting to Yes with Yourself, “Life is too short for these mutually destructive conflicts that consume people and their families with stress, tension, and a huge loss of resources.”

Image: “Law & Order” (CC BY 2.0) by Paige.

Source: Kitroeff, Natalie. “The Best Law Schools Are Attracting Fewer Students.” Bloomberg Business. Bloomberg L.P., 26 January 2016. <www.bloomberg.com/news/articles/2016-01-26/the-best-law-schools-are-attracting-fewer-students>.

Posted on

NASA sails into space inspiring faster-better-cheaper resolution

Demonstrating the rubric of faster-better-cheaper (called “FBC”), NASA will be taking a new tack into space exploration. However, not everyone has come aboard on the faster-better-cheaper ship. NASA engineers often respond to faster-better-cheaper by demanding: “Pick two!” For example, with software development it is generally believed that if a project’s scope increases (better), then either the completion time increases (slower) or the people expense increases (costlier). Because of the pick-two response of engineers, there is often a debate over whether faster-better-cheaper is all that NASA’s leadership has claimed it to be. Nevertheless, it appears that faster-better-cheaper remains useful to help achieve continued exploration of space.

According to National Geographic, NASA will be sending a spacecraft the size of a shoebox to rendezvous with a distant asteroid. The spacecraft, known as the Scout, won’t be powered by rocket fuel. Instead, it will draw power from sunlight using an ultrathin solar sail. When light particles (photons) from the sun bounce off of the solar sail, the spacecraft will be propelled forward and is expected to reach a speed of over 63,000 miles per hour. That is fast, especially considering the Scout doesn’t require storage for fuel after it is released from a launching rocket. Furthermore, because the sun is always shining, the Scout can keep accelerating. This makes the Scout faster because there are fewer mechanical parts requiring time to develop. The Scout is better because it can reach high speeds without fuel. And, the Scout is cheaper to develop due to the solar sail’s simplicity.

Mediation compared to going to trial

Not only can faster-better-cheaper be helpful to promote space exploration, it is also a useful rubric for dispute resolution. When compared to going to trial, mediation is almost always faster and cheaper. Mediation is considered faster because you can schedule a mediation at any convenient time, as opposed to waiting for trial to be scheduled on a court calendar. And, mediation is considered cheaper because you can resolve your conflict before a court process spirals out of your control, with corresponding out of control costs.

When deciding whether to mediate, the most typical question asked is whether the outcome of mediation will be better than what would likely be achieved in the courtroom, given the extra cost and time of protracted litigation. Of course, it is often difficult to determine what a litigated outcome will be. After all, it can be hard to predict what a jury will do. This is why, in a preconference phone call, a mediator will often discuss with parties what their objectives are and whether they have compared those objectives to a likely outcome at trial. After parties analyze their options, the courtroom may become the preferred destination. However, one must also take into account that mediation is a confidential process, and some may consider mediation better simply because it allows one to preserve privacy.

Conflict coaching compared to doing nothing

Conflict coaching also fits within the faster-better-cheaper rubric. As Ken Cloke points out in his book Resolving Conflicts at Work, the time and money spent resolving conflicts in the workplace are far less than the time and money wasted on unresolved conflicts. For example, unresolved conflicts can destroy relationships, decrease productivity, increase employee turnover, and ultimately lead to lawsuits. Further, managers get pulled into unresolved conflicts after they become intolerable for everyone, taking managers away from their other business duties. Also, there is an opportunity cost to unresolved conflicts in that an organization may be missing the opportunity to improve its structure and culture by addressing what might be a widespread problem.

Rather than sweeping conflict under the rug and hoping that it disappears, people in conflict can sit down with a conflict-resolution facilitator and work out solutions. Specifically, a facilitator can help everyone tell each other what is true for each person, and utilize listening skills to hear the perspective of others. Facilitation is a small investment compared to the time, energy, money, and resources lost through people being unable to work together.

Set your own sail

Like NASA’s Scout that is stretching out to achieve great things, don’t be afraid to rely on faster-better-cheaper to go places with conflict resolution that may seem unreachable. Just as NASA is coming up with creative solutions to set lofty goals, try mediation and facilitation to find creative resolutions that free you to catch the solar winds of your own goals.

Image: “Solar Sail” (CC BY-SA 2.0) by Kevin M. Gill.

Source: Strauss, Mark. “New NASA Spacecraft Will Be Propelled By Light.” National Geographic. National Geographic Society, 3 February 2016. <news.nationalgeographic.com/2016/02/160202-solar-sail-space-nasa-exploration/>.

Posted on

Van Halen: Tracking mediation issues with a checklist

It turns out that there was method to Van Halen’s madness. Have you heard the story of David Lee Roth demanding that a bowl of M&Ms be placed in his dressing room, except that all of the brown M&Ms had to be removed, and if there was a single brown M&M in the bowl, Van Halen had the right to cancel that evening’s show? Despite the story sounding far-fetched, it is not about an eccentric rock star. The story is actually about checklists designed to keep everyone safe.

According to Atul Gawande who wrote The Checklist Manifesto, Van Halen’s truckloads of heavy equipment had to be set up correctly, especially in smaller arenas. If something was set up wrong, it could fall and crush someone. To ensure safety, Van Halen’s contract provided a detailed checklist of precise setup instructions. However, the checklist was only useful if it was followed. So, the band buried in the checklist the unexpected instruction to remove all brown M&Ms. When David Lee Roth arrived backstage, all he had to do was inspect his bowl for brown M&Ms to know whether or not the equipment checklist had been followed.

Mediators use checklists to provide you with a consistent and predictable process surrounding what can be an inconsistent and unpredictable negotiation. One of the checklists is the mediation agenda, which is a list of the issues that need to be addressed. Just as airplane pilots use concise checklists in emergency situations, mediation agendas work best when each issue is described with a short phrase that captures the main idea. These short phrases help ensure that issues don’t get forgotten.

According to Atul Gawande, sometimes people object to taking time to create a checklist. For example, in the past, some surgeons didn’t want to follow checklists. However, those surgeons became fans after they saw the improved results. Here are some improvements that you can expect with the creation of an agenda of issues in mediation:

  1. Agendas provide a way for you to think about what is important to you.
  2. Agendas communicate that importance to the other side.
  3. Agendas assist negotiation by indicating to you what is important for the other side.
  4. Agendas ensure that as we go deep into the trees of conflict, we won’t lose sight of the forest of resolution.

Of course, just because an issue is on an agenda doesn’t mean that we have to talk about it. After all, sometimes an issue will decrease in importance during a negotiation. Similarly, if you think of an issue after we create an agenda, we can always add that issue. This makes an agenda a tool that helps keep mediation on track without it adding unnecessary constraints.

As you prepare for mediation and think through your needs and wants, be ready to explain them to your mediator so that they can be tracked on an agenda. Like airplane pilots and surgeons who benefit from checklists, you’ll appreciate that the mediation agenda is a simple checklist that will keep you focused on what is important to you.

Image: “m” (CC BY 2.0) by Dawn Huczek.

Source: Gawande, Atul. The Checklist Manifesto: How to Get Things Right. Metropolitan Books, 2010.

Posted on

Study shows your dog can read your emotions

There is a saying that dogs don’t bark at parked cars. It’s funny how a dog will chase what’s in motion and ignore what is standing still. In reality, just because something is moving doesn’t mean it deserves attention. In conflict, the issue you are facing may be the equivalent of a moving car. But you might want to consider whether the parked car of an emotion might also deserve some thought. After all, an emotion may actually be what’s driving your decisions.

University of Lincoln’s study of dogs

It turns out that your dog pays attention not just to moving cars, but to your emotions as well. As reported in ScienceDaily, a study by the University of Lincoln shows that dogs can recognize human emotions. If you are a dog person, you’ve probably always suspected this. If you are a cat person, you are probably asking how this can be. Well, dogs simultaneously saw images and heard voices of people experiencing certain emotions. The tricky part is that when the emotions of the two were the same, such as a happy picture and a happy voice, the dogs spent much more time looking at the picture. This showed that dogs pick up on our emotions. If dogs can do it, let’s try to do it too.

1) Emotions can signal where you need to pay attention

Emotions are generally categorized as positive, such as happy, or negative, such as sad. However, this positive-negative categorization can be misleading because emotions themselves are morally neutral. It’s how you express emotions and what you do with them that you need to watch. For example, if anger clouds your reason, then you may make poor decisions. On the other hand, Harriet Lerner explains in her book The Dance of Anger that anger can be used as a tool for change. Don’t ignore your emotion as a dog ignores a parked car.

2) Try to understand what is behind an emotion

In his book The Seven Habits of Highly Effective People, Stephen Covey was on a subway when he observed a father and his out-of-control children. He felt anger at what he perceived as a father who was incompetent and derelict. Thank goodness that he didn’t act improperly on his feeling of anger because he later learned that the children’s mother had recently passed away. There was nothing wrong with Stephen Covey’s feeling of anger, but he allowed his anger to cause a snap judgment. He was like the dog chasing after a moving car, until he explored what was actually going on. Similarly, mediation and facilitation helps you explore the cause of a conflict in order to resolve it.

3) Get moving in the right direction

The word “emotion” comes from the Latin word emovere. Although it sounds like a spell out of Hogwarts, it means “to move or set into motion.” In fact, the word “motivation” also comes from emovere. At the very least, foster the emotion of happiness. In his book The Happiness Advantage, Shawn Achor describes what he calls the “Tetris Effect” that helps you spot opportunities from patterns of possibilities. Noticing your parked cars of opportunities is what makes mediation and facilitation so helpful.

Do you prefer cats or dogs?

While we are speaking of pets and emotions, I am curious. Are you a cat person or dog person? I tend to think of myself as a dog person because I get a kick out of playing pooch tug-of-war. But, I have to admit that our last cat had me wrapped around her little claw. Even though her meowing would wake me in the middle of the night, after she passed away, I missed her terribly. Okay, I’ll say it. The emotion I felt was “sad.”

How about you? Whether you are a dog or a cat person, what can you learn about emotions from your pet?

Image: “Dog” (CC BY-SA 2.0) by Céline.

Source: University of Lincoln. “A man’s best friend: Study shows dogs can recognize human emotions.” ScienceDaily. ScienceDaily, 12 January 2016. <www.sciencedaily.com/releases/2016/01/160112214507.htm>.

Posted on

The Martian: Feeling stranded by conflict

I hope none of us are ever in such dire straits as Mark Watney, the character from the book The Martian by Andy Weir and played by Matt Damon in the movie. Yet, despite Mark’s predicament of being stranded on Mars and his immense loneliness and desperation, he never lost sight of the importance of being a problem solver. Hopefully you are not feeling as if you are stranded on Mars by a conflict, but here are some ideas to use mediation to put a conflict behind you.

1) Prepare for rescue by focusing on the future

Problem solving kept Mark alive on Mars. To be a problem solver, he did not let the past of being abandoned by his crew interfere with what he wanted to achieve for his future. Staying focused on the future is also a good idea with mediation. While the courtroom is the place to explore the past to determine who is to blame, mediation provides the opportunity to look into the future to determine what outcome will feel like a rescue from Mars and give you a future that you can live with.

2) Know your goal

One of the first things Mark had to do was set his sights on his desired outcome, which was to stay alive until the next scheduled Mars landing in about three years (1480 sols). His goal kept him focused on his needs, such as conserving his food, rather than being distracted by his wants of eating a full meal. With mediation, understanding your needs and wants will help you achieve your goal.

3) Think broadly about information

Mark did a thorough job of collecting data about his problems, but even with such diligence, he invariably would forget some important piece of information that would cause havoc to his plans (“Everything went great right up to the explosion,” Mark Watney). Don’t suppress your intuition about what data will help you make good decisions. During a pre-conference phone call, let your mediator know if you need more information to have a productive mediation.

4) Take care of yourself

I was impressed by Mark’s recognition that he had to take care of himself in order to survive. If he became exhausted, he knew that he would not be able to deal with the next life-threatening event. Similarly, pace yourself in mediation. Ask your mediator for a break and go for a short walk to get the creative juices flowing. Make sure that you take care of yourself physically and emotionally.

5) Laugh a little

Of course, the hallmark of Mark’s survival was his sense of humor. If your mediator brings humor into your mediation, use that time to relax and give your brain a rest before getting back to the serious work of resolving your dispute.

Working together

What else can we learn about mediation from The Martian? Think about the phrase, “Let’s work the problem, people,” spoken by Flight Director Gene Kranz played by Ed Harris in the movie Apollo 13.

Image: “Daybreak at Gale Crater” (CC BY 2.0) by NASA Goddard Photo and Video.