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Mediation in practice

A formidable panel of trademark experts took the stage for Sunday’s mock mediation session. On one side were Miles J. Alexander of Kilpatrick Townsend & Stockton in the U.S. and Daniel R. Bereskin of Bereskin & Parr in Canada. Opposing them were Louis T. Pirkey of Pirkey Barber and Lori A. Ball of Molson Coors. Driving the parties towards an agreement was moderator Leslie J. Lott of Lott & Fischer in the U.S.

The lawyers were reenacting a real case concerning the Homeaway and Homesaway marks in a realistic portrayal of a mediation that featured opening statements, joint sessions between the parties, private caucuses and the occasional sarcastic comment (such as “They say it’s not extortion. We know better”).

The session was introduced by James M. Amend, who also provided a commentary on some of the action and decisions. He noted how ­moderator Lott “focused on the driving forces behind a potential settlement” by getting the parties to set out terms first, before deciding on a dollar figure. In the end, the moderator provided a suggested figure confidentially to each party, which they both accepted.

Lott emphasized that focusing on what is “fair” in a mediation may not always be helpful, and it is important to remind the parties of that: “Peace may be more important to the parties than fairness.” Following the mock mediation, the speakers revealed that the real case that inspired the session had been resolved in voluntary mediation to the satisfaction of both parties in 2007, and that both companies had gone on to be successful.

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