Magic Hat and West Sixth breweries go to mediation! Well, sort of...
It is refreshing to see that the two parties in a trademark dispute are opting for mediation, according to reports. Lawsuits and court processes are expensive, drawn out, unpredictable and uncontrollable by the parties. Mediation offers an alternative process that is quicker, less expensive, and retains control of the process to the parties. Unpredictability remains, but this is usually a good aspect allowing for the discovery of hidden or latent problems, and/or the creation of unique solutions. Hopefully, Magic Hat and West Sixth will benefit from this mediation, and I applaud them for their efforts.
What troubles me is the selection of a magistrate judge to serve as mediator. Now, I do not know who this judge is, so I don’t want to…judge, but for the most part, judges are not mediators. Sure, they can “mediate” according to their definition of mediation, but this falls short of the processes used by experienced mediators. A common mistake is to assume that those in the legal profession (attorneys, judges, etc) are also seasoned mediators. This is not true most of the time. To be sure, some mediators are, or were attorneys and have changed professions. Yet, the experience gained in the court system does not translate well to mediation.
The primary distinction between mediation and litigation is the focus of advocacy. Whereas the attorney advocates for her/his client and for a winning judgment, a mediator advocates for the mediation process and helps parties come to an agreeable resolution. The goal is not to prove right/wrong, legal/illegal, or decide who put forward a better argument; it is to overcome the dispute through a resolution that both parties agree on, and, for the most part, create.
Perhaps attorneys and judges realize this, and they probably do. Their challenge is to reach such resolution by using the most effective techniques during mediation. While facts and figures work well in the courts, they have little bearing in most mediations. Again, mediation is about resolving a dispute on agreeable terms by both parties, and not what the data influences. After years of argumentation, adjudication, and client advocacy, it is difficult for anybody to transfer to process-focused methods. This is not to say that some once-legal-minded mediators cannot effectively mediate, but merely to point out the fact that mediation skills are not easy to grasp and practice. Becoming a skilled and effective mediator takes time; it is a full time practice.
My fear is that the mediation West Sixth and Magic Hat will, reportedly, undertake may be more of an arbitration and less of a mediation. That is, the mediator will hear the arguments and decide on a resolution for the parties, instead of the parties coming up with one with the assistance of the mediator. I could be wrong. But if this mediation does not work, it will give Mediation in general a bad rap. And that will hurt everybody who becomes involved in a dispute, and that’s all of us.