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Apple, Samsung Heading Back to Mediation
Apple, Samsung Heading Back to Mediation

By Jennifer LeClaire
January 9, 2014 1:08PM

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Mediation hasn’t worked because neither Apple nor Samsung has been willing to abide by the mediator’s recommendations. Unless that changes or unless Apple and Samsung go to arbitration, mediation probably won’t work any better this time around than it has in the past, said Rob Enderle, principal analyst at The Enderle Group.
 



With the next trial looming in a San Jose, Calif. court in March, Apple and Samsung are once again heading to mediation to work out their respective patent disputes on the smartphone technology front.

U.S. District Judge Lucy Koh in November requested that the companies take part in a settlement discussion before the trial, according to Bloomberg, and the companies reportedly met on Jan. 6 to discuss opportunities to bring the case to a close without stepping foot back in a courtroom.

According to the filing, Apple and Samsung agreed to hire a mediator “who has experience mediating high profile disputes,” Bloomberg reports. Nevertheless, industry watchers are skeptical that mediation will result in a resolution.

Apple Needs an Arbitrator

We caught up with Rob Enderle, principal analyst at The Enderle Group, to get his take on the latest round of mediation. He told us Samsung and Apple have been ordered to mediation several times without a positive outcome.

“I would be more excited if they were going to arbitration because the arbitrator can render a decision -- and that decision is binding,” Enderle said. “But with mediation the mediator recommends a decision and then it’s up to the parties to agree or not. If they don’t agree [they] go back to court.”

Mediation hasn’t worked because neither Apple nor Samsung has been willing to abide by the mediator’s recommendations. Enderle said unless that changes or unless the companies go to arbitration, mediation probably won’t work any better this time around than it has in the past.

Both Companies Want Out

“Unfortunately, if the two parties are far apart the mediator can’t resolve it,” he said. “The mediator has to find middle ground -- a place where both companies overlap and where the companies accept what the mediator says.”

From Enderle’s perspective, it’s far better to go to an arbitrator because the companies are compelled to the outcome unless they want to appeal. Arbitration results in an assured outcome. Mediation can help if the parties are close. But when the parties are as far apart as Apple and Samsung have historically been, it doesn’t work all that well, he said.

“We’ll see what happens. Clearly, Samsung and Apple are getting very tired of the litigation and they want out,” Enderle said. “That may be enough to bring them together, but historically it hasn’t.”
 

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