Mediating a non-compete and trade secrets dispute is different than mediating general commercial disputes. This is particularly true early on in litigation. Non-compete cases are front loaded by nature and get expensive very quickly. The associated expenses are often beyond a party's control. Here are five things to keep in mind as you consider whether and when to mediate a non-compete and trade secrets case:
1. Consider mediating early, and be prepared to do so rapidly. The conventional wisdom when it comes to mediation is that the parties should not do so until they have had a chance to conduct discovery. More often than not, this advice is right on the money. But the nature of a non-compete case is different. These cases require rapid attention, and that is equally true in mediation.
2. Be prepared and willing to disclose information. This runs counter to a commonly utilized approach where parties are discouraged from using mediation as a substitute for discovery. In ordinary litigation, where costs are likely to be strewn out gradually over time, parties are understandably reluctant to disclose facts that won't be learned by their opponents for some time. But in non-compete disputes, discovery is likely to be swift in coming, and instantly expensive upon arrival.
3. Choose a mediator well experienced in non-compete and trade secret litigation. This can mean the difference between a successful and unsuccessful mediation. The fact that a party has successfully obtained a temporary restraining order does not necessarily mean it will obtain a preliminary injunction or damages. The opposite is also true. Denial of a temporary restraining order does not automatically mean recovery of damages is foreclosed. Using a mediator who has litigated non-compete cases will translate into credibility for the mediator, which is essential. It will also ensure that the mediator can craft and propose enforceable and creative non-monetary solutions if necessary.
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