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.
