At Klemchuk Kubasta LLP, we understand that every case is different – some cases demand an aggressive approach all the way through trial, while others may be amenable to an early resolution through alternative dispute resolution (ADR). Intellectual property disputes can quickly become very expensive and are thus well suited for early neutral evaluation and/or mediation. For this reason, Klemchuk Kubasta LLP considers the use of ADR to be an integral part of our intellectual property practice. In appropriate circumstances, an effective ADR strategy can further the client’s business goals, reduce the expense and delay associated with litigating disputes, and avoid the business distractions of litigation.
In addition to representing our clients during ADR, our Firm’s attorneys are available to serve as neutrals during Early Neutral Evaluation and/or Mediation. Our attorneys’ IP litigation experience makes each particularly well suited to serve as a neutral or a mediator in IP disputes.
Early Neutral Evaluation
Early Neutral Evaluation (sometimes referred to as “outcome prediction” or the “settlement judge” approach) allows one or both parties to solicit a neutral expert’s assessment of the likely outcome of a dispute. The goals of Early Neutral Evaluation (ENE) are to:
- encourage direct communication between the parties about their claims and supporting evidence;
- provide an assessment of the merits of the case by a neutral expert;
- provide a “reality check” for both clients and their lawyers;
- identify and clarify the central issues in dispute; and
- facilitate settlement discussions, when requested by the parties.
As part of the Early Neutral Evaluation, the neutral will review the parties’ factual and legal positions and evaluate the relative strengths and weaknesses of such positions. Accordingly, for intellectual property disputes, it is critical that the neutral have substantial expertise in the fields of patent, trademark, trade dress, copyright, or trade secret law, as the case may be. The attorneys of Klemchuk Kubasta LLP have many years of intellectual property expertise and are thus uniquely qualified to offer effective Early Neutral Evaluation services for intellectual property disputes.
Whereas Early Neutral Evaluation provides an evaluation of the merits of the case, Mediation involves the use of a neutral to help facilitate an agreement between the parties. A successful mediation allows the parties to settle their dispute without incurring the substantial time and expense involved in taking a case through trial.
The attorneys of Klemchuk Kubasta LLP believe that an effective mediator offers more than mere shuttle diplomacy. Accordingly, a K&K IP attorney acting as a mediator brings creativity and persistence to the mediation process. The key to resolving a dispute often resides in more than just a mere dollar figure. While the financial aspect is certainly important, many times the tipping point in a mediation (i.e., the ability to create a win-win resolution) involves a non-monetary concession. For this reason, it is critical that the mediator in an intellectual property dispute fully understands both the facts and the law. The attorneys of Klemchuk Kubasta LLP have many years of representing both plaintiffs and defendants in intellectual property and are thus particularly effective as mediators for intellectual property disputes.
Interested in hiring a Klemchuk Kubasta LLP attorney as a neutral in an Early Neutral Evaluation or a Mediation, please contact us.