Jeff Kichaven (pictured left) is one of California’s leading mediators. I met Kichaven several months ago while I was in Newport Beach, California, to speak at the Orange County Bar Association. At the conclusion of our breakfast meeting I asked if he would be interested in an on the record conversation for publication. He agreed. What follows are except from our conversation, which took place on Monday, December 22, 2014. To read the full transcript of the interview please see Working toward settlement wherever possible.

Here is our dialogue on the reality that in most circumstances neither party really wants a court to make a decision and would be better off reaching a negotiated resolution.

QUINN: … And my experience usually when the judge or the jury makes the decision neither party is happy.

KICHAVEN: That’s true. So many times it has cost so much, taken so long and been so grueling along the way, that even the winner questions whether it was worth it.

QUINN: Yes.

KICHAVEN: It’s especially true in intellectual property cases because when people get too involved in litigation focusing on the past and perhaps lose their focus on the marketplace, new competitors can come in and beat them in the marketplace. So it’s important, particularly for technology companies in fast moving industries, to keep their eyes focused on the future and competing in the marketplace rather than focused on the past and competing in the courtroom, other than in a small number of cases where that focus really is absolutely necessary.

Here is our dialogue relating to the types of cases Kichaven is seeing, and expecting to see, as litigation under the America Invents Act heats up.

QUINN: … Let me ask you specifically about the America Invents Act… we’re starting to creep up on the second anniversary of those first to file changes and I wonder whether you’re seeing different disputes, maybe not “dispute” in the larger meaning but different issues that have crept into mediation since that Act got passed?

KICHAVEN: I think we’re going to see those changes work their way into mediation more profoundly in the next year or two because in so many cases, when they’re first filed in court, they’re really not ready to be mediated, they’re really not ready to be settled. People need to go through the factual discovery and get their various pretrial rulings on legal issues to get some clarity from the judge as to which way the wind is blowing in their cases. So I don’t think we’ve really felt the full impact of the AIA yet. I think that within the next year or two, we’ll start to see more and more. Of course, we are seeing a lot more cases with nonpracticing entities in mediation and those present their own kinds of challenges because you’re dealing with particular kinds of parties with particular kinds of economic and business interests. When we deal with nonpracticing entities in mediation, we have to take them seriously. They are the parties to the lawsuit. They operate the kinds of businesses that they operate. They take positions and have underlying interests that need to be acknowledged as real and sincere. And the parties opposing the nonpracticing entities have to deal with them straight up and sometimes make some difficult decisions as to whether to settle and how much money to pay.

Here is our discussion relating to getting to the point where settlement is an option and mediation can realistically be a useful tool to help facilitate a negotiated resolution.

QUINN: … Fortunately or unfortunately depending on your viewpoint, there are many startup companies who will have a patent attorney and then that patent attorney will grow with the company and ultimately become a general counsel or having a decision making authority and now the patent that that person prosecuted is being questioned. And generally speaking that dynamic isn’t necessarily going to facilitate settlement.   So I guess my question to you is with your experience what is the dynamic that leads to a settlement resolution more often than not?

KICHAVEN: Again, when people reach a point where they can start to see a future independent of whatever is in dispute in this lawsuit, then they’re ready to say, “you know what there’s another invention out there, another business opportunity, another job, another prospect.” And, when something emerges in their future that begins to look concrete and real and promising, then people are less likely to cling on to what has existed in the past as the keystone to all of their success and their career and their lives.

Tags: ADR, alternative dispute resolution, Arbitration and Mediation, mediation, patent, Patent Litigation, patents

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