Mediation – Done, Done, On To The Next One

 The last three rounds of mediation took place in the course of the last two weeks of the term. I wasn’t able to write individual posts for each mediation, so I’ve decided to do a composite of all three now that I’m over the inevitable post-end-of-term-cold. So much for dramatic tension, but at least I can promise a happy ending.

Silk Dresses

Quarterfinal

Factually, this has been my favorite mediation so far. A design firm and a production middle-man clashed over a product which incorporates both of their intellectual property. It felt like a situation where we were on the right side of the facts but the wrong side of the law, which drew the different focus of the lawyer and client roles into sharp detail. This was the first time we received really nitty gritty factual details, and the negotiation stage of the mediation involved per unit pricing and a contract that would have covered future possibilities like exclusivity clauses and indemnity for potential third party loss. Very creative and flexible, I loved the scope we had to work with.

The feedback we received was again more detailed than before. One of my big failings was not bringing a calculator with me; I thought my phone would be enough and it wasn’t. In addition, our side’s failure to disclose all their confidential information – pertinent or not – was seen as a potential problem that could undermine the negotiated agreement. And finally, our agreement contained too little specificity, which I felt was a problem we could have solved with more time.

Formula

Semifinal

Ahhhhh, safe legal ground – a patent dispute between Canadian and German chemical companies. I’ve been challenging myself to play both roles in the mediations, and here was one I felt completely comfortable as the attorney. My partner, Iain, liked the anger and emotion the client brought to the table in what is sadly a classic patent dispute situation – a small start-up company acquired a product in development from a third party, and then learns it may infringe a much larger company’s patent. Our opposition was thoroughly prepared, however, and there were some good points where the two companies could “make the cake bigger for everyone”. The mediation actually went so well the mediator threw us a curve ball to shake things up and see how we recovered!

Our feedback started becoming a bit retrospective at this time. Our two opponents had been judged by this particular judge almost all the way through, and she made repeated comments on being pleased to see how everyone had been responding to their feedback throughout the process. We also learned some linguistic tricks, like correcting a mistake your opposition makes with a question rather than a statement. And I remembered my calculator this time!

The two semifinal mediations took place back-to back on a Friday morning, and we had the results by that evening – Iain and I were through to the final!

mediation1

Final

Unlike all the previous rounds, this event was open to the public and there were about a dozen fellow classmates in attendance. There were more judges than participants, including not only the teacher overseeing the mediation process, but the two winners from the previous two years. And it was filmed. No pressure.

The fact pattern on this one was very complicated: three contracts in three different countries on three different products. On the up side, lectures had finished so I had a lot more time to prepare. And get nervous. Which was good, because our opposition was extremely thorough and pushed hard for their interests. We made what I would consider to be one error (we should have come back from our private caucus with an offer), but in the end we were extremely close to an agreement.

Our feedback was incredibly positive and again cumulative. Our openings were well balanced between the two roles and ended with enough of a threat to get the other side’s attention. Iain and I both had some very good lines that caught the judge’s attention, and we both used humor to defuse tense moments. The mediator pointed out a potential strategy we could have used that I never even thought of (minimum pricing), so I’ve filed that away for later.

After the mediation there was a thirty minute break for the judges to confer, and Iain and I were announced as the winners!

Mediation final

What’s Next

Paris!  As the competition winners and recipients of the school’s Professor Miryana Nesic Memorial Prize for Mediation Iain and I are headed to the international competition this February. This also means that in addition to trying to glean every possible piece of information from our feedback, we’ll receive some actual TRAINING, which I’m so excited about! Yesterday we picked up the briefing packets for the four preliminary rounds and we’ll get started on the representation plans after Christmas.

I can honestly say I didn’t expect to win. I just kept telling myself to do as well as I could each round and have fun with it; if I advanced that would be great. Iain is the BEST partner I’ve worked with – our styles of preparation and presentation clicked instantly and we do a good job of pointing out subtleties the other missed. Plus we both play videogames and are huge move geeks, so we speak a common metaphorical language.

January will be another tough month of school work and preparation, and this trip will take up my entire Reading Week so no more down time until Easter, but I can’t WAIT!

Paris

Photo sources:

http://www.golden-silk.com/html
http://patentbaristas.com/archives
http://www.dialmformediation.com.au
http://www.glsvlsi.org

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Published in: on December 20, 2012 at 06:08  Comments (2)  
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2 CommentsLeave a comment

  1. […] Mediation: Done, Done, On To The Next One – The mediation competition final three rounds. […]

  2. Nice one Muse! Here’s to another win in Paris 🙂


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