In 2008, the ITC initiated a pilot mediation program for Section 337 investigations. The program is largely modeled on the Federal Circuit mediation program. Like the Federal Circuit program, the ITC maintains a roster of approved voluntary mediators (nearly all of whom are also on the Federal Circuit roster), the ITC performs conflicts checks for the selection of a mediator, and the ITC does not charge the parties for participating in mediation. Also like the Federal Circuit program, mediation is confidential. Neither the mediator nor the program director (the ITC Supervisory Attorney for Docket Services) will communicate about the substance of the mediation proceedings with the Administrative Law Judges, the Office of Unfair Import Investigations, the Office of the General Counsel, or the Commissioners. To maintain confidentiality, the ITC has issued form Non-Disclosure Confidentiality Agreements for Mediators, Parties, and Authorized Representatives and has issued a standing protective order that requires that, “Upon the conclusion of the mediation, the Mediator shall destroy all confidential business information, including any position papers submitted by the parties and exhibit books, all notes, papers, and all other confidential business information in his or her possession” and “All confidential business information provided to the Mediator and all communications with the Mediator are subject to the confidentiality provisions of 5 U.S.C. § 574, the terms of the Commission Users’ Manual, and the Commission Non-Disclosure Confidentiality Agreements for Mediators, Parties, and Authorized Representatives.”

The ITC mediation program is different from the Federal Circuit program in one material respect. An ITC mediation does not trigger any delays in the underlying ITC investigation. Unlike the Federal Circuit program, where a mediator can extend deadlines to accommodate the mediation, the ITC program specifically provides that participation in mediation is not grounds for obtaining extensions of time or otherwise delaying the Section 337 proceedings before the Administrative Law Judge.

The pilot mediation program at the ITC got off to a slow start. Although records of mediation proceedings are not public, it is believed that that no party availed itself of the program in 2008 or 2009. This initial phase of the program was similar in many respects to the initial phase of the Federal Circuit program. The Federal Circuit program began as an entirely voluntary proceeding and parties rarely requested mediation. The Federal Circuit program later became a more mandatory program, essentially requiring parties to mediate in circumstances when a case was identified by the Court as a good candidate for mediation (regardless of whether either party had requested mediation). After the Federal Circuit made this change to its program the number of mediations rose dramatically to more than 100 cases per year. The success rate for settling cases in these Federal Circuit mediations is also astonishing, with 48 of 101 mediations in 2009 resulting in a settlement.

The ITC pilot program appears to have gained some momentum in 2010. Public records indicate that Kodak as Complainant in the ITC’s Investigation No. 337-TA-703 and Respondents RIM and Apple in that investigation all agreed to participate in mediation under the pilot program. In the companion case 337-TA-717, Complainant Apple and Respondent Kodak have reported participation in mediation with the Hon. Eugene F. Lynch (Ret.) serving as the mediator. In the ITC’s Investigation No. 337-TA-705, Complainant Toshiba and Respondent Winstron reported participation in mediation with the Hon. Robert Faulkner (Ret.) as the mediator. In the latter two cases, although the parties participated in mediation and reported such participation in their settlement reports to the ALJ, the parties appear to have arranged mediation independent of the ITC’s program. In addition to these mediations, in ITC Investigation No. 337-TA-698, a case with numerous respondents, the Chief Administrative Law Judge has recommended to the ITC mediation program director (the ITC Supervisory Attorney for Docket Services, James Holbein) that ITC Investigation Number 337-TA-698 “be put immediately into the ITC Mediation program.” After this recommendation by the Chief Judge, a number of settlements occurred, although it is not clear that these settlements were the result of a mediation.

Significant to the increase in mediations of ITC cases, in 2010, Chief Administrative Law Paul J. Luckern adopted a new ground rule specifically requiring attendance and compliance with any mediator directive in cases where the Supervisory Attorney for Docket Services directs the parties to participate in mediation. In particular, Chief Judge Luckern’s new Ground Rule provides:

If the Supervisory Attorney for Docket Services determines that the private parties should participate in the Mediation Program, the parties must attend any conference arranged by the mediator and comply with requests from the mediator, e.g., for briefing from the private parties or to have business principles attend, etc. After a mediation is selected, the private parties must also comply with any request by the mediator.

Moreover, as noted above, the Chief Administrative Law Judge recommended to the ITC Supervisory Attorney for Docket Services that ITC Investigation Number 337-TA-698 “be put immediately into the ITC Mediation program.” Further, the Commission recently adopted a new mediation user manual that specifically states that all ALJs “may require attendance at mediations sessions.” This approach to mediation is different from the Commission’s approach when it initiated the pilot mediation program two years ago. When the program was initiated the Commission recognized it had authority to require attendance at a mediation, but chose to promote the program as one where parties participated only on a voluntary basis. The new approach is to specifically authorize the ALJ’s to require attendance at mediation sessions, which is similar to the approach of the Federal Circuit.

None of the other Administrative Law Judges presently have a Ground Rule similar to Chief Judge Luckern’s rule concerning attendance at mediation and compliance with requests from a mediator. Judge Essex, however, requires parties to consider and discuss during mandatory settlement conferences aspects of a case that may be appropriate for mediation. Further, Judge Essex has noted in at least one preliminary conference that he expects the parties to report their discussions on mediation in a settlement report to the Judge, and that the information reported may result in the parties being contacted by the Commission and asked to participate in mediation.