IP protections flood the courts with litigation, pushing other cases back for years.

Some have argued that mediation is the process best suited to handle many intellectual property disputes. 76 Intellectual property disputes -- whether rooted in copyright, trademark, or patent law -- are often more complex and difficult [*1014] to comprehend than other types of litigation. 77 However, many important figures in the civil litigation process, such as judges and jurors, may not understand the issues before them due to an inability to understand confusing scientific or technical issues. 78 By participating in mediation, parties in intellectual property disputes can select neutrals that possess the expertise necessary to "concentrate on the details and specifics of the case, as opposed to trying to learn or better understand the technical process," which should "result in a fairer resolution to both parties." 79

Economic concerns, however, likely explain why mediation and other forms of alternative dispute resolution are often promoted as alternatives to traditional litigation in intellectual property disputes. Due to their highly complex nature, intellectual property disputes are among the most costly to litigate, with the typical intellectual property lawsuit costing more than $ 400,000. 80 While copyright lawsuits are often less expensive to litigate than trademark or patent disputes, 81 they remain costly -- for instance, the median cost to litigate a "low stakes" copyright dispute (defined as damages less than $ 1 million) through discovery is $ 101,000, with the median cost of litigating a "low stakes" dispute through trial and appeal is $ 249,000. 82 In contrast, the average cost of resolving a dispute through mediation is $ 50,000. 83 Furthermore, intellectual property disputes, particularly patent litigation, often take a significant amount of time to litigate. Although copyright and trademark disputes, unlike patent disputes, rarely face the danger of a very lengthy trial, the parties often will have "a genuine concern for swift resolution" in order to "prevent companies from experiencing devastating financial setbacks." 84 Mediation, "by allowing the parties to begin negotiations immediately, without having to wait months or years to appear on a court docket," may greatly reduce economic costs by resulting in a speedier resolution than traditional civil litigation. 85 [*1015]

3. The U.S. District Court for the Northern District of Illinois: A Case Study in Court-Sponsored Mediation

The U.S. District Court for the Northern District of Illinois has been a pioneer in implementing court-sponsored mediation in certain intellectual property disputes. On September 30, 1996, this district court amended its local rules 86 to create the Lanham Act Mediation Program. This mediation program, which was "the result of collaboration between the intellectual property bar and the judicial leadership in the U.S. District Court for the Northern District of Illinois," 87 sought to provide speedier and more cost-effective resolutions to trademark disputes arising under the Federal Trademark Act of 1946 (the "Lanham Act"). 88

A. Program Structure

Under the local rules, all Lanham Act cases in the Northern District of Illinois are automatically assigned to the Lanham Act Mediation Program. 89 Despite this initial assignment, the program is voluntary, for the parties can decline to participate. 90 However, if the parties do not wish to participate, they must submit a joint written statement to the court outlining the reasons for non-participation, without disclosing which party in the dispute did not want to enter mediation. 91 If the parties do wish to commence mediation through the program, they must submit a joint written notice to the court confirming their intent to participate. 92 The parties must submit a joint written notice regarding their participation in the program by the first scheduling conference or within sixty days of the filing of the complaint, whichever occurred earlier. 93

Parties choosing to mediate their dispute through the program would commence mediation within forty-five days of submitting the joint written notification to the court. 94 The court would choose mediators from a roster of neutrals who have practiced law related to the Lanham Act for at least five years or who have served as neutrals for three or more years. 95 Mediation would end [*1016] within thirty days of its commencement, at which point the mediator would have ten days to report the outcome of the mediation to the district court. 96

B. Empirical Measure of Performance

In response to concerns from the district court and the Illinois bar that the program was rarely used and a potential failure, the Center for Analysis of Dispute Resolution Systems ("CAADRS"), conducted a research study to evaluate the Lanham Act Mediation Program's effectiveness. 97 CAADRS conducted its study by surveying 202 lawyers and thirty mediators who had been affected by the Lanham Act Mediation Program, 98 as well as reviewing court dockets for all Lanham Act cases filed between January 6, 1997, and December 31, 1999. 99

The CAADRS study resulted in several key findings. Though the relatively rare use of court-sponsored mediations was primarily attributed to many Lanham Act cases settling before mediation could have realistically taken place 100 as well as attorneys and mediators failing to comply with the local rules by not submitting the proper forms to opposing counsel or the court, 101 the lawyer survey indicated that many attorneys did not believe mediation was a viable option given their client's needs. For instance, 63.96 percent of lawyers stated that a client's need for injunctive relief made a case inappropriate to mediate, 102 with 46.85 percent concluding that "the need to establish legal precedent made mediation unsuitable." 103 Lawyers found that cases were most amenable to mediation when there was a need to avoid the expense of litigation, quickly resolve the dispute, or preserve an ongoing business relationship. 104 Mediators who were surveyed expressed virtually identical sentiments. 105 Finding that the program was "sufficiently effective," few changes to the program were recommended. 106 [*1017]

4. Problems with Mediating Copyright Disputes

Despite assertions to the contrary by proponents of mediation, court-sponsored mediation in copyright disputes is unlikely to resolve the underlying problems with the current copyright system. Many copyright disputes are not easily amenable to mediation. Just as a large percentage of Lanham Act disputes involve a request for injunctive relief, plaintiffs in copyright disputes also often ask for remedies that are difficult to obtain in mediation, including injunctions. 107

More importantly, many plaintiffs, even those in copyright infringement lawsuits that do not request injunctive relief, have little incentive to choose mediation over litigation. Lanham Act disputes, by their very nature, often involve businesses as parties, many of whom have pre-existing relationships that they wish to preserve. Many copyright litigants, however, do not even have a relationship with each other prior to the lawsuit, let alone have an incentive to preserve such a relationship. For instance, the RIAA and similar organizations have little incentive to submit their disputes with individual infringers to court-sponsored mediation, particularly when the facts are straightforward or the defendant cannot afford a lawyer. In such situations, wealthy plaintiffs -- particularly wealthy plaintiffs who have sued many individuals for copyright infringement and have expert knowledge of the relevant law and the process -- may believe they have little to gain from mediation, since the defendant would likely accept any settlement offer made by the plaintiff or risk a default judgment. Wealthy plaintiffs, rather than viewing mediation as a cost-effective method of resolving disputes, may consider it a hindrance, for participating in mediation may cause defendants who would otherwise settle immediately after being sued to hold out until the mediation process has concluded, thus causing the plaintiff to incur additional costs. 108