THEME: Mediation and Commercial Law
This article was authored by Sandesh Pai and Niranjan Kumar.
The purpose of this research is to examine the application of Mediation in the settlement of intellectual property right disputes, as an Alternative Dispute Resolution (ADR) mechanism, as against the traditional litigation system. The aim is to highlight the various benefits that Mediation provides to resolve such disputes, while also addressing the lacunae of litigation in dealing with the same disputes. The study delves into the advantages of employing Mediation as a conflict resolution mechanism for disputes that specifically arise in the categories of patents, trademarks, and copyright. The essay sheds light on the lucrative nature of Mediation in resolving matters between concerned parties in an amicable and consensual manner. The research looks critically into some of the disadvantages posed by Mediation in settling intellectual property right disputes. The essay brings out the facilitative and non-adversarial disposition of the Mediation process, while emphasizing on the skill, expertise and impartiality of the mediator in assisting the parties to reach a mutually agreeable settlement. The paper also talks about the role of the World Intellectual Property Organization (WIPO) in the promotion of both intellectual property rights and Mediation, through its WIPO Arbitration and Mediation Centre. The study comments on the character of intellectual property rights, while striving to maintain a favourable balance between public and private rights over the same. The essay justifies the exemplary potential of Mediation to resolve intellectual property right disputes, provided the said process is used aptly and in its true essence.
Keywords: Mediation, intellectual property rights, disputes, settlement, WIPO, ADR, patents, trademarks, copyright.
Intellectual property rights are only as strong as the means to enforce them. From this we can infer that enforcement mechanisms play a vital role in upholding the integrity of intellectual property rights and their owners. Intellectual property largely refers to intangible creations of the human mind, which confers rights upon those who have created them through the application of their mind. The World Intellectual Property Organization (WIPO) describes intellectual property as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. WIPO was established in 1967, as a specialized agency of the UN, to encourage creativity and promote protection of intellectual property around the world.
The main idea behind assigning intellectual property rights to individuals or other legal entities is to ensure that they can enjoy their rights freely, without misappropriation by others. A person should be entitled to benefit from the fruits of his labour and legitimately exercise his rights over any intellectual property created or acquired by him. Intellectual property rights are rights in rem, as once they are obtained in accordance with the intellectual property law of the country where they are sought, the right-holder can enforce it against any person who infringes such a right. The intellectual property law of a country generally comprises patent law, trademark law, and copyright law. Intellectual property disputes are, therefore, disputes between parties over the intellectual property rights associated with any of the aforementioned categories of intellectual property.
Alternative Dispute Resolution (ADR) serves as a contemporary way of settling disputes among parties in an amicable and efficient manner. ADR is an all-encompassing term which refers to multiple non-judicial methods of handling conflict between parties. This dispute settlement mechanism has gained momentum in the last few decades, and is being preferred to traditional court litigation. ADR is particularly suitable and viable to resolve intellectual property disputes for a wide range of reasons, which include- quick and efficient resolution of disputes; cost efficiency; creative and interest-oriented results; control over process and outcome; maintained, improved, or new business relations; and finally, confidentiality. These lucrative characteristics of ADR make it highly favourable in the settlement of intellectual property disputes among concerned parties.
Among the various forms of ADR include- mediation, arbitration, expert determination, negotiation, etc. The focus of this essay will revolve around the process of mediation in resolving intellectual property disputes. Mediation is a private informal process where an impartial third party assists the disputants in reaching their own mutual agreement concerning their differences. Here, the neutral third party, or mediator, plays a facilitative role in guiding the disputants to identify areas of concern and helps them in reaching mutually beneficial terms, arrived at by the parties themselves. The mediator merely serves as a means through which the mediation session can commence, by assisting the parties in communicating with each other in joint sessions, as well as in private caucuses held with only the mediator, and one party at a time. He is able to bring about creative and unique settlements between the parties, using his skills and by making tactful use of the information rendered by the parties in the session, without imposing or prescribing anything explicitly.
Owing to the largely appealing and cordial nature of the mediation process, WIPO founded the WIPO Arbitration and Mediation Center in the year 1994, which serves as a neutral, global dispute resolution provider, offering cost efficient and inexpensive ADR choices to parties in order to resolve their intellectual property disputes outside Courts.  WIPO Center, as it is often called, caters to a wide range of disputes, and is particularly beneficial in the settlement of transnational intellectual property disputes. As per a survey conducted by them in 2010, around 91% of respondents had concluded agreements on intellectual property and technology related transactions with parties from other jurisdictions, which confirms the international nature of such transactions and the need for more efficient forms of dispute settlement. Further, 27% of respondents indicated that mediation is preferred as the first limb of the dispute resolution clause in their agreements.
Now that the paper has brought out the present scenario of the application of mediation to intellectual property disputes and the numerous benefits of doing so, the research will further delve into exploring the possibility of using mediation as a dispute resolution mechanism for a broad range of intellectual property disputes, including patent disputes, trademark disputes, and finally copyright disputes. This seeks to specifically analyse each category of intellectual property right disputes, with regards to potential settlements through mediation.
- Mediation in cases of Patent disputes:
WIPO states that a patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a mew technical solution to a problem.  The criteria for granting a patent is that the product or process invented must be novel and capable of industrial application. There are primarily two kinds of disputes that arise in relation to patents, which include, patent validity claims and patent infringement issues. The traditional patent litigation system is cumbersome and arduous, and a typical patent suit takes 1.12 years, on average to be resolved, and the average litigated patent takes between 7.5 years and 12.5 years to render the final judgment, which is around half of the patent term, which lasts for 20 years. Mediation of patent disputes, however, are usually settled in less than a year, thereby not consuming a lot of the patent’s 20 year term, which serves favourably to the patent holder in the dispute.
Another drawback of the patent litigation system, which can be rectified through the use of mediation, is the exorbitant expenses involved in litigation. On average, the cost of a patent litigation suit is around 2 million USD, which is due to high discovery costs, attorney fees, expert testimony, etc. However, mediation lends itself to be a less expensive alternate, costing only 10 to 50 percent of the costs incurred in litigation. Generally, when a person is sued for patent infringement, that person pleads the defence of patent invalidity, and if he is successful in proving so, then he is absolved of any infringement liability, and the patent holder not only loses the lawsuit, but also the rights over his patent. Such a disadvantage to patent holders can be rectified through the use of mediation, where though the defence of invalidity of patent can be claimed, the mediator does not have the power to invalidate the said patent. Thus, mediation of patent infringement cases is beneficial to plaintiffs, as their rights over their patent would remain intact.
One of the great advantages of opting for mediation to resolve patent disputes is that the mediator, unlike judges and the jury in cases of litigation, would have technical expertise in the area of patents and would be able to understand the issues involved in the matter at a much greater level. Furthermore, the mediators are chosen by the parties on a consensual basis, thereby allowing complete neutrality and impartiality, allowing the dispute to be settled on merit and in a conciliatory manner. Mediation of patent disputes also enables parties to the matter to bring out their interests and desires, allowing for more personalized settlement, leading to greater satisfaction. Mediation ensures creative and innovative remedies and solutions arrived at by the parties, with the guidance of the mediator, which may include research collaborations, licensing agreements, cross licencing, etc.
Mediation is highly sought after by parties to patent disputes due to the high degree of confidentiality that comes with it. The mediation session occurs only in the presence of the parties and the mediator, and all proceedings are kept confidential, unless agreed to the contrary by the parties. The terms of settlement are also kept confidential, owing to the interests of the parties. Lastly, the unique feature of mediation that makes it so favourable to settle patent disputes, is that it is amicable and cordial in nature, which in turn helps to preserve relations or improve existing relations between the parties. Since parties have a great deal of control with regards to the mediation process, and come up with mutually agreeable settlements, any prior existing commercial or business relationships would remain intact and could possibly grow stronger.
Despite the various advantages that mediation offers in the resolution of patent disputes, it is not entirely free from its own limitations. When it comes to certain patent disputes, where there is a significant amount of money at stake, possibly millions of dollars, parties would favour the traditional litigation system as the benefits that would accrue on success in such a suit would greatly outweigh the costs incurred in litigation. Further, the decision given by the Courts would be binding on the parties, unlike mediation, which is not binding unless parties agree to it. When the stakes are high, the parties in mediation would be unlikely to cooperate in an understanding manner, knowing well that if things don’t go as planned, they can always opt to forego the process or settlement entered into, without any consequences.
Also, in case of patent validity disputes, the mediator does not have the power to invalidate the patent, which can only be done through the orders of a Court. In cases where there exists no business or commercial relations between the parties, it would hardly be of concern to the parties to maintain any sort of cordial rapport with one another, and so they would go to any extent to protect their rights. A patent holder would not be willing to compromise with the patent infringer and come to a middle ground to settle their dispute, but would rather ensure full protection of his rights against such an infringer, without keeping the latter’s interests in mind.
Finally, due to extensive confidentiality ensured by mediation, a vital element of ‘public interest’ is at a loss. The whole essence of patents is that they provide monopoly rights to the patent holder for a fixed period, in return of such a person disclosing all information regarding the invention, for scientific and research purposes. The private nature of mediation prevents the public from obtaining knowledge about patents and curbs scientific discovery to the extent of such privacy afforded to the parties. Since patents have such tremendous value to the public and the industry, it is often contended that private settlement of such public related disputes is unethical and hinders scientific advancement.
- Mediation in cases of Trademark disputes:
WIPO defines a trademark as a sign capable of distinguishing goods or services of one enterprise from those of other enterprises. This indicates that a trademark is any symbol that is used by a company or enterprise to easily differentiate their products from that of other enterprises. It serves as a tool of recognition for consumers, who would be in a position to identify the enterprise that manufactures the products, by noticing the sign or symbol depicted on the products. Trademark infringement is one of the most common intellectual property disputes that arise when one enterprise violates the exclusive rights of another’s trademark without authorization. Trademark litigation is a very expensive affair, with each lawsuit costing around half a million USD on average. Mediation surely provides a cheaper alternative, capable of producing more favourable results.
Trademarks serve as the identity of an enterprise and their goodwill and reputation depend on their recognition by the customers, and a large part of their business thrives on it. Often, in trademark litigation, the Court grants injunctions during the pendency of the case, which adversely affects the business of the enterprise as they are prohibited from using their trademark to sell their products. These injunctions may last for a long period, keeping in mind the lengthy litigation proceedings, which further exacerbates the agony of the enterprise in their commercial transactions. Under such circumstances, mediation would provide a much faster dispute resolution, without negatively affecting the business prospects of the enterprises concerned in the dispute.
To illustrate how mediation effectively resolves trademark infringement disputes, let us take the case of Hell’s Angels v. Marvel Comics, where the former sued the latter, contending that Marvel’s comics had a character called ‘Hell’s Angel’, which violated the formers trademark. The case was referred to the Court’s ADR programs, where the parties sat for mediation. Hell’s Angels’ interest was that Marvel should not profit from their name. Marvel’s interest was to resolve the dispute in a way that would not benefit Hell’s Angels. The mediator helped the parties to come up with a creative solution, whereby Marvel agreed to donate 35000 USD to Ronald McDonald House for Children, a charity chosen by Hell’s Angels, and also refrain from using their trademark in the future. This shows a unique form of settlement which was mutually agreed to by the parties, which not only catered to their interests, but also proved gainful for a third party as well in this instance.
Mediation is especially suitable in two scenarios related to trademark disputes. Firstly, when parties have an existing commercial relationship with one another and would like to preserve the same. In such cases, mediation would prove extremely useful in providing a platform where both parties could amicably settle their dispute on mutually beneficial terms. Also, creative solutions like shared rights, consent to use agreements, royalties, etc. could be explored and given effect to by the parties themselves. Usually in trademark disputes, parties have a clear goal in mind, and mediation helps such parties to meet those goals in the most innovative and reasonable way possible.
Secondly, mediation is suitable where trademark infringement occurs as a result of ‘expanding brands’. This happens when an enterprise ventures into new lines or categories of products or services, in new markets under their trademark, and in doing so, they invariably infringe upon another enterprise’s trademark, who in return want to save their customer base and goodwill from the competition created by the other brand. In such cases, mediation is increasingly helpful to parties as it saves expenses of litigation, limits the scope of discovery and saves time, builds commercial relationships, leads to flexible and creative solutions, and finally avoids any unfavourable or extreme outcomes, that may possibly have arisen in litigation. Thus, when it comes to brand conflicts, where parties are rational and oriented towards settlements, potential solutions like monetary compromises, shared rights, collaborations, royalties, etc. could be ventured into, through mediation.
Despite of the numerous benefits that mediation provides in the settlement of trademark disputes, it is not entirely free from drawbacks. It is crucial to note that since mediation is not binding on parties, unless they agree to the same in writing, there is no direct appellate review after mediation has concluded. Thus, upon unsuccessful mediation, both parties are back to square one and must institute a suit afresh or de novo. This wastes a lot of time, money, and resources, which the mediation process seeks to reduce in the first place. Further, when parties complete mediation, but one party refuses to sign the settlement agreement, there is generally no recourse for the other party, as it lacks a binding value, and this can be misused by certain parties who wish to stall the matter, until it goes to trial.
Another drawback of mediation is that it is not necessarily suitable for all kinds of trademark disputes, especially where there is trademark infringement in bad faith or with sinister intentions of the infringing party. In such a scenario, mediation would be inefficient, as there would be no scope for reconciliation between the concerned parties, and no reason for the party whose trademark was infringed with a mala fide intention, to compromise with such an infringing party. Also, another setback of mediation that often haunts trademark holders is its inability to grant permanent injunctions, which are most often sought in trademark infringement cases. Many a time, parties whose trademarks have been wrongfully infringed may choose to forego mediation for this reason, and are usually left with no other option, except to defend their trademark in court, which is able to grant them a permanent injunction, which they so deeply desire to protect their trademark from unruly infringers.
- Mediation in cases of Copyright disputes:
WIPO describes a copyright as a legal term used to denote rights that creators have over their artistic and literary works. Such works include books, movies, maps, computer programs, paintings, sculptures, etc. Thus, a copyright provides the owner an exclusive right over his artistic or literary works and ensures that others do not misappropriate his works without attracting legal consequences. Hence, we can infer that copyright law in essence, strives to balance private rights of the creator against public rights of others, in relation to the subject matter being copyrighted. The criteria for granting of copyright is originality of work, which is fixed in a tangible medium of expression. Copyright is generally granted for the duration of the lifetime of the author, plus 50 years from his death.
Copyright infringement is a menace which haunts copyright owners, which requires expediate resolution, and mediation would serve well for that purpose. The average cost of a copyright infringement suit is around three hundred thousand USD due to expert witnesses and detail-oriented nature of copyright suits. This however can be reduced significantly through opting for mediation, and consequently the average price would be around fifty thousand USD. Also, the mediation process is quicker and less time-consuming compared to copyright litigation, and hence any potential commercial losses that may have been incurred had the matter been pending in court, can be avoided. Injunctions that may have been granted while the matter was in court could seriously impede the financial aspects of such copyrighted works, and thus prove detrimental to the copyright owners, whose misery would continue until the matter is decided and such an injunction is removed.
One of the key advantages of employing copyright mediation is the potential for parties to share copyrighted works. Copyrights generally fall within the ambit of public goods, and hence possess the features of non-excludability and non-rivalrous nature. However, the legal protection afforded to the owner for his copyrighted works allows him to make such works excludable to others. Despite this, copyright law is incapable of altering the non-rivalrous tendency of such works, and thus, consumption of such a work by one party cannot prohibit its consumption by another party. It is due to this reason that mediation offers a lucrative capacity to share their copyrighted works without decreasing the magnitude to which another party may consume the same. So, it allows mutual benefit for both parties involved and the copyright owner is incentivized to share his works with others for monetary gain, in the form of licence agreements, joint ventures, etc. Hence, mediation procures a creative solution to a dispute, which would have otherwise prolonged in court, much to the distress of the concerned parties.
Further, mediation allows parties to circumvent the procedural and substantive aspects of copyright law and litigation, which may have adverse effects on their interests. The all-or-nothing nature of copyright litigation can be a risky bargain for a party if their claims are not as strong, which can be avoided through mediation where the stakes are relatively less and allows for a more flexible and consensual settlement, holding true to the interests of both parties concerned in the dispute. Mediation, as already discussed earlier, helps to preserve or establish business relationships, which are presumably already in place between the disputants. Intellectual property rights disputes are such that there inadvertently exists a relationship between the parties in many cases, and mediation offers the best way to safeguard such relations, both in the short-term and long-term. Finally, the opportunity to select and render the services of mediators, well-versed in the field of copyright law, helps parties to get the most value out of the mediation session. The disputants are free from the burden of having to educate the mediator as to the nuances and intricacies of the law and circumstances under which the dispute arose.
In spite of the aforementioned advantages of copyright mediation, it receives its fair share of limitations from critics. The first criticism against copyright mediation is that it suffocates the development of copyright law. This is because mediation of copyright disputes would reduce copyright cases being decided in Courts, and thereby decrease precedents in copyright law, which is ill-defined to a great degree. Thus, the judicial interpretation of copyright law through Court verdicts would be narrowed down, and the grey area of copyright law would still remain, largely problematic.
Another compelling argument against copyright mediation is that matters of copyright involve a great social element, which should not be reduced to a private negotiation process. Critics often opine that copyright disputes, which are so important to society at large, should be decided through adjudication in Courts, rather than through settlements made in private. Intellectual property rights are aptly construed as public goods, which are excludable through legal protection, but still remain non-rivalrous for consumption. Owing to this intrinsic nature of intellectual property rights, which serves to balance both public rights, while affording private rights to their owners, any settlements made though the mediation process would be adverse to the interests of the public. Such critics believe that mediation of copyright disputes would undoubtedly provide short-term resolution of the matter to the concerned parties, but in the long-term, it would prove detrimental to the public, who are left in the dark, by being kept oblivious to copyright issues of utmost social significance.
The world of Alternative Dispute Resolution (ADR) in general, and Mediation, in specific is growing at an ever-increasing rate. Ever since its inception in the 1970s, it has taken the world by storm and offered stiff competition to traditional litigation in numerous fields of law. Intellectual property rights too have evolved from strength-to-strength over the last few decades, with several international efforts made towards its cause, with the TRIPS Agreement of 1995 at its forefront, with over 160 signatories. Various nations, all over the globe have taken large strides towards the promotion of sufficient and efficient protection of intellectual property rights, which is ultimately one of the key objectives of the TRIPS Agreement, administered by the World Trade Organization.
It is without a doubt, that mediation has immensely beneficial characteristics, which makes it such a desirable mechanism to settle disputes, especially where both parties have an existing relationship of sorts, which is often the case in matters arising out of intellectual property rights. That being said, mediation still has a long way to go in being utilized efficiently, and in a more widespread manner. As compared to traditional litigation, mediation is still in its initial stages and has the potential to outgrow litigation in the future, as the primary method of dispute resolution around the world. Mediation has not only addressed some of the major flaws of litigation, but has also been able to evolve a unique character and entity of its own, which if used appropriately, would yield marvellous results and outcomes.
WIPO continues to play a crucial role in educating people about intellectual property rights and the means to enforce them. Through its Arbitration and Mediation Centre, WIPO seeks to enable the utilization of various forms of ADR to settle intellectual property right disputes. Mediation of such disputes at the international arena is especially suitable, as it is driven primarily by the interests of parties and is facilitated by an experienced mediator, and hence the technicalities of law are avoided. Further, since the law governing intellectual property rights at the transnational level varies from country to country, it becomes hard for disputants from two or more different nations to settle their disputes on the basis of any one particular country’s law, and legal system.
Thus, mediation provides a universal method to ensure solutions for transnational intellectual property right disputes and serves as a uniform and consistent base, without the excessive technical and procedural aspects of the law of any particular country. Also, at the intra-national level, mediation is all the more feasible, as it allows disputants of the same nation to amicably settle their matter according to their interests, without adding to the burden of workload on Courts of Law. Therefore, mediation offers itself as a parallel or alternative mechanism to resolve conflict, along with traditional litigation. In doing so, it not only decreases the increasing dependency on Courts, but additionally allows disputants to reach creative remedies mutually, while affording a great deal of flexibility and discretion in the process.
Despite the multifarious advantages that mediation provides in resolving intellectual property right disputes, it still has a long way to go before it reaches at par with traditional litigation. One of the reasons for the underutilization of this glorious process is the lack of education among the legal fraternity and intellectual property holders, with regards to its efficacy and practical feasibility. There are also many falsely held myths about the mediation process, which though are not true, still continue to build apprehension in the minds of those who would like to consider it for resolving their issues.
Likewise, in the grander scheme of things, legal systems all over the world must realize the significance of mediation as a conducive and suitable process to resolve intellectual property right disputes, and in doing so, ensure that they dispel any such falsities and myths that surround the mediation process. In this contemporary day and age, with growing technologies, brands, artistic works, etc., there is a vital need for legal protection through intellectual property rights, which as earlier mentioned, largely depend on the means to enforce them. Rights and remedies go hand in hand, and hence, it becomes all the more important to adopt sound and appropriate forms of dispute resolution. In closing, it is only fitting that mediation gets its due recognition in the legal sphere, for the remarkable dispute resolution mechanism that it truly is.
 Marc Jonas Block, The Benefits of Alternative Dispute Resolution for International Commercial and Intellectual Property Disputes, 44 Rutgers L. Rec. 1, 5 (2016-2017).
 International Bureau of WIPO, What is Intellectual Property?, WIPO Pub. No. 450, June 2003, at 2.
 Jesse S. Bennett, Saving Time and Money by Using Alternative Dispute Resolution for Intellectual Property Disputes – WIPO to the Rescue, 79 Rev. Jur. U.P.R. 389, 392 (2010).
 Block, supra note 1, at 2.
 Miriam R. Arfin, The Benefits of Alternative Dispute Resolution in Intellectual Property Disputes, 17 Hastings Comm. & Ent. L.J. 893, 899-901 (1994).
 Carmen Collar Fernandez & Jerry Spolter, International Intellectual Property Dispute Resolution: Is Mediation the Sleeping Giant, 1 J. World Intell. Prop. 555, 557 (1998).
 Ignacio de Castro & Panagiotis Chalkias, Mediation and Arbitration of Intellectual Property and Technology Disputes: The Operation of the World Intellectual Property Organization Arbitration and Mediation Center, 24 SAcLJ 1059, 1059-1060 (2012).
 Id. at 1065.
 Id. at 1066.
 WIPO, supra note 2, at 5.
 Marion M. Lim, ADR of Patent Disputes: A Customized Prescription, Not an Over-the-Counter Remedy, 6 Cardozo J. Conflict Resol. 155, 168-169 (2004).
 Id. at 170.
 Vivek Koppikar, Using ADR Effectively in Patent Infringement Disputes, 89 J. Pat. & Trademark Off. Soc’y 158, 159-160 (2007).
 Kimberly M. Ruch-Alegant, Markman In Light of De Novo Review, Parties to Patent Infringement Litigation Should Consider the ADR Option, 16 Temp. Envtl. L. & Tech. J. 307, 318 (1998).
 Id. at 323.
 Danny Ciraco, Forget The Mechanics and Bring In The Gardener, 9 U. Bait. Intell. Prop. L. J., 47, 76 (2000).
 Steven J. Elleman, Note & Comment, Problems in Patent Litigation: Mandatory Mediation May Provide Settlements and Solutions, 12 Ohio St. J. On Disp. Resol. 759, 774 (1997).
 Lim, supra note 11, at 174.
 Id. at 181.
 Id. at 184-186.
 WIPO, supra note 2, at 8.
 Stephanie Chi, The Role of Mediation in Trademark Disputes, 2 Am. J. Mediation 105, 106 (2008).
 Max Vilenchik, Expanding the Brand: The Case for Greater Enforcement of Mandatory Mediation in Trademark Disputes, 12 Cardozo J. Conflict Resol. 281, 285-286 (2010).
 Arfin, supra note 5, at 896-898.
 David Allen Bernstein, A Case for Mediating Trademark Disputes in the Age of Expanding Brands, 7 Cardozo J. Conflict Resol. 139, 159-160 (2005).
 Vilenchik, supra note 23, at 302.
 Id. at 304-305.
 Thomas J. Speiss & Stephen M. Levine, An Analysis of the Factors That Determine When and How to Resolve a Trademark Dispute, 11 Rich. J.L. & Tech. 1, 2 (2004).
 WIPO, supra note 2, at 18.
 Stephen P. Anway, Mediation in Copyright Disputes: From Compromise Created Incentives to Incentive Created Compromises, 18 Ohio St. J. Disp. Resol. 439, 445 (2003).
 Id. at 450.
 Scott H. Blackmand & Rebecca M. McNeill, Alternative Dispute Resolution in Commercial Intellectual Property Disputes, 47 AM. U. L. Rev. 1709, 1716 (1998).
 Anway, supra note 31, at 450-452.
 Id. at 453-459.
 Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1075 (1984).
 Id. at 1085.