Virtual Mediations and Patent Litigation: Lessons Learned and Best Practices

Mediation has always been an important part of patent litigation – especially in the Eastern District of Texas. Because of the Covid-19 pandemic, virtual mediations have become an important and successful way to resolve patent disputes. We have conducted or participated in more than 50 virtual patent mediations since the pandemic began, and these recommended best practices are based on our experiences over the past year.

Before the pandemic, many courts and judges required that everyone be physically present to conduct mediations, including the physical presence of a corporate representative with authority to bind each company. Failure to comply with this requirement was a sanctionable violation. Due to the assumption that the mediation session would not be productive unless everyone was physically present, requests to allow remote participation, even when not opposed by the other side, were frequently rejected outright by the court and/or the mediator.