Page 9 - The Katten Kattwalk - Fall 2025 - Issue 30
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• The disputed trademark at issue is central to magistrate judge to whom the judge can refer the
the challenged party’s business plan and/or case) or to a private mediator who is not involved
marketing strategy. in or associated with the pending litigation. While
there are advantages to using a judicial officer, the
• The challenged party’s insurance carrier is disadvantages may justify the costs associated with
covering its fees, costs and/or part or all of any retaining a qualified private mediator.
damages award. 6
There are many advantages of choosing a judicial
• One of the parties would be seriously damaged
if it were to lose the dispute. officer. Perhaps the most compelling is the fact that
a judge or magistrate judge may have more leverage
• The timing of the mediation is wrong. and ability than a private mediator to “twist the
arms” of counsel and their clients (the “black robe
Certain characteristics of the mediation process may
also aid dispute resolution. See below: effect”). Lawyers who regularly appear before a court
generally wish to avoid gaining a reputation as being
• If parties perceive the mediator as neutral and as unreasonable and difficult, and, at the same time, a
having no stake in any particular outcome, this judicial officer often commands the respect of even
may allow them to make suggestions and solicit difficult parties who may otherwise be resistant to the
ideas more effectively. reasonable suggestions of a mediator. There may also
be a cost advantage in using the courts (in contrast
• If the mediator approaches the case with a fresh to using a private mediator who charges a fee), as the
perspective, this will allow them to evaluate
the merits of the case more accurately than the parties do not have to pay for the time spent by the
judge or magistrate judge. In addition, to the extent
participants.
it is appropriate, a judge may be in a position to more
• If the mediator is not limited by judicial easily facilitate a “stay” of the litigation and allow the
procedures, this may allow them to overcome parties to proceed with mediation without having to
the obstacles that are preventing the parties participate in ongoing discovery or motion practice.
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from resolving their dispute. By staying the litigation, the court may enable the
parties to avoid the polarizing effect of pre-trial
• The mediator can hold “ex parte” conferences
with the parties, allowing them to speak directly discovery and motions, as well as the additional legal
expenses that the parties would otherwise incur in
with the principals.
connection with such activities.
• The mediator is respected by all parties for their At the same time, however, there may be several
knowledge, experience in litigation, prowess in
the area of the law and neutrality, enabling them disadvantages associated with the decision to
mediate before a judge or magistrate judge. Perhaps
to speak frankly without alienation.
one of the greatest drawbacks to mediating before
Choosing the proper mediator the court — and the trial judge, in particular — is that
counsel and their clients may be less likely to move
Once the parties decide to engage in the mediation off of their positions to reach a middle ground, even
process, it is the responsibility of counsel to do 8
everything possible to facilitate a successful if the case will ultimately be tried to a jury . While
meaningful mediation often requires that the parties
outcome. Among other things, recommending and
selecting an effective mediator is essential to a disclose the weaknesses in their positions and/or
confidential information at an early stage, the parties
meaningful mediation, as the choice of mediator can
either maximize the chances for success or doom the may not be willing to participate with the requisite
degree of candor if they perceive that a judge may
mediation process to failure.
be forming impressions of the parties or the case
Often the first decision that must be made when before a full hearing on the merits. Additionally,
selecting a mediator is whether the mediation should a judge or magistrate judge often will not be able
proceed before a judge assigned to the case (or a to commit as much time or energy to mediation
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