Mediations in this District are referred to our Magistrate Judges, Mary Pat Thynge,
Christopher Burke or Sherry Fallon. Judge Thynge, in particular, has been mediating patent cases for more than 20 years and has developed a clear understanding of the issues. Once a matter is referred to the Magistrate for mediation, she will issue an order scheduling a telephone conference to discuss scheduling mediation. This call takes approximately 5 minutes. During the call, which may be with the Magistrate Judge or with her secretary, the parties will communicate whether there is agreement as to when in the litigation is the most productive time for mediation. Judge Thynge is usually scheduling mediations 3 to 5 months in advance. Once a date is selected, an order will be issued explaining the nature of the mediation statement required and the date it is due. A copy of Magistrate Judge Thynge’s form mediation order is attached. The mediation statement is not served on counsel or filed with the court. It is kept confidential by the Magistrate Judge. As you will see, it should be about 20 pages and contain the strengths and weaknesses of each party’s position as well as the current and anticipated expense of the litigation.
Magistrate Judge Thynge comes to the mediation table very well prepared. She expects a business person for each party to be in attendance with authority to settle. While she is more than willing to consider any approach the parties suggest, her normal approach is shuttle diplomacy. At the appointed hour of the mediation, all will convene in her courtroom for introductions. She will generally meet with the patent holder first for 1-1/2 to 2 hours. Typically the other party will either wait in the courtroom or return to Delaware counsel’s office until a specific hour or a call from chambers. She then meets with the accused infringer. After the first set of meetings, the Magistrate Judge will have a sense as to whether further mediation is fruitful. If it is, she will continue with a subgroup, such as just the business people. The process will continue throughout the day. If more than one day is required, it will generally not be during this visit to Delaware, and another date will be scheduled. She may very well conclude that subsequent telephone mediations will be satisfactory. In the event a settlement is reached during the mediation, she will assist in preparing a term sheet to avoid miscommunications. You may find helpful the article (right) she wrote for the ABA’s Intellectual Property Litigation publication.
Judges Burke and Fallon have begun to follow Judge Thynge’s procedures for handling
In the event the parties are not satisfied to wait for 3 to 5 months to mediate, for a fee, the
Delaware Court of Chancery has the jurisdiction to accept petitions to mediate where one of the parties is a Delaware corporation and the amount in controversy exceeds one million dollars. Vice Chancellor Parsons in particular comes with a solid patent background and many years participating in mediations as an advocate. A copy of the rules relating to mediations in the Court of Chancery can be found to the right.