The chiefs of Apple Inc
Courts across the United States are increasingly demanding that parties in civil disputes take a stab at mediation, and the federal courts in northern California have been pioneers in pushing litigants toward various forms of alternative dispute resolution. Mediation has also become routine in big intellectual property cases. Last week, for example, a federal judge in Delaware ordered mediation in a patent dispute between Apple and HTC.
In a some cases, though, courts have taken the effort to a new level: hauling in the CEOs of big companies to try to work things out directly. It's the corporate equivalent of therapy, only in this case, the participants each get to bring along a team of lawyers.
Since lawyers can often get emotional in the heat of litigation and may grow to dislike each other, bringing a decision-maker from above the fray makes sense, said Wayne Brazil, a former U.S. magistrate who founded the federal court's ADR program in northern California.
Apple has accused Samsung of “slavishly” copying the iPhone and iPad through products that run on Google's Android operating system, and Samsung has counter sued. The case, the most closely watched in the global patent war between the two companies, is set for trial at the end of July in San Jose, California. Each company denies the other's allegations of patent infringement.
The two companies already have had at least one mediation session, according to court documents. However, it is unclear whether Cook and Choi attended. A Samsung representative declined to comment, and Apple representatives did not respond to inquiries.
The ongoing battle between Samsung and Apple …
The upcoming session, scheduled for two days, will take place in a federal courtroom 40 miles (64 km) north of Silicon Valley, in San Francisco's seedy Tenderloin neighborhood. It will be up to U.S. Magistrate Judge Joseph Spero – a bow-tie wearing extrovert known for a knack with complex cases – to corral the CEOs and their lawyers toward a settlement.
It's possible that if Spero senses animosity between the two men, he may separate them, with the judge shuttling between the two sides, said one lawyer who has participated in mediations with the magistrate. In that scenario, the lawyer said, one company might have to set up camp in a room usually used for jury deliberations, while the other could be in the judge's offices.
“You'll see each other when you're headed to the common bathroom, but that's about it,” said the lawyer, who declined to be identified because of pending cases. Spero declined to comment on the mediation.
The relationship between the two companies is complex: While Samsung's smartphones and tablets run on Android and compete with Apple's products, Samsung is also a key components supplier to Apple.
Cook became Apple CEO last year as company co-founder Steve Jobs wrestled with a terminal illness. Jobs told his biographer he intended to go “thermonuclear” on Android, but it is unclear whether Cook shares the same degree of emotion. Choi became Samsung's leader in 2010. If Spero senses a rapport between the two men, he may opt to have them spend more time talking face to face.
Still, a CEO mediation session may only go so far. Last year, Oracle's Larry Ellison and Google's Larry Page undertook mediation in their high-stakes intellectual property fight, but no settlement was reached and a trial in the case is entering its sixth week.
“I can't imagine that the heads of a major enterprise of that kind would take any more seriously a decision of that magnitude, simply because they are in the room together,” said Vaughn Walker, a former northern California federal judge who now works as a mediator.