Page 7 - The Katten Kattwalk - Fall 2025 - Issue 30
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• Mediation may reduce hostility and preserve There are also factors that increase the likelihood that
or commence a relationship between the a controversy can be resolved through mediation,
parties including:
• Parties may maintain confidentiality • Resolution of the dispute is a top priority for both
parties.
• Mediation minimizes the risk of creating “bad
law” since there is no reported decision • The parties have an important business
relationship that they both wish to continue, such
Key factors also include possible disadvantages of as a manufacturer and a distributor or a licensor
mediation over litigation in resolving disputes, such
as: and a licensee.
• Key decision makers for the parties are familiar
• Lacks the procedural and constitutional
protections of litigation with and committed to mediation.
• Key decision makers are familiar with the dispute
• Challenging party may be frustrated by the itself and the goals of their business, and come
fact that mediation is not a “truth” or “fault” with knowledge of risks/costs of litigation.
inquiry and that there is no finding of “right” or
“wrong” • At least one party has successfully used
mediation to resolve disputes in the past.
• Success of the mediation depends upon the
parties’ willingness to come to the bargaining • Each party has engaged in business practices that
table in good faith; those who do not can are or will be the subject of claims by the other
be viewed as using the process to serve party if the dispute is litigated.
unjustified means in the litigation, such as • Each party wishes to avoid adverse publicity,
to delay the litigation process or to obtain a
“free” look at the other party’s case strategy negative or unwanted publicity in the industry,
government scrutiny or the risk of follow-on
and evidence, etc. This can create enhanced
distrust and needlessly escalate litigation consumer litigation with respect to its business
practices.
costs.
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