Getting to Yes in Texas: Mediation as a Legal Norm in IP Disputes

Spring 2025

Chandler Lawn[*]

Abstract

Litigating intellectual property disputes can be an emotionally and financially draining endeavor. Yet too often, the courtroom remains the default venue, even when the dispute involves parties who would derive greater benefit from confidentiality, relational preservation, and flexible solutions.[1] Mediation offers a structurally different model: one grounded in party autonomy, interest-based negotiation, and creative problem-solving. Drawing from the principles of Getting to Yes, as well as empirical evidence supporting ADR outcomes,[2] I argue that Travis County should make mediation mandatory before trial in civil IP cases.[3]

Local rules already authorize courts to refer cases to mediation[4] and Chapter 154 of the Texas Civil Practice and Remedies Code provides a robust statewide statutory framework. The policy question, then, is not whether mediation is available, it is whether it should be required. Given the unique pressures of IP disputes (such as technical complexity, reputational stakes, and the need for time-sensitive resolution) mandatory mediation is not merely a procedural convenience; it may be a substantive justice imperative. As explored in this paper, compelling parties to engage in principled negotiation through ADR is both consistent with due process and critical to ensuring that dispute resolution in the IP realm advances both efficiency and creativity.

I. Introduction

Austin is a particularly creative and tech-heavy jurisdiction, making it an ideal example for exploring mandatory mediation in IP disputes. Under the Local Rules of Civil Procedure governing the Travis County state district courts, judges have the discretion to refer civil cases—including intellectual property disputes brought under state law—to alternative dispute resolution procedures.[5] Intellectual property litigation encompasses a wide range of civil disputes involving legal ownership including (but not limited to) patents, copyrights, trade secrets, and trademarks.[6] IP owners can hail from a variety of industries including tech, healthcare, and entertainment. Despite the wide-ranging nature of IP, there are strong commonalities throughout these industries and ownership structures that fit particularly well into an ADR context. Most pertinent are the emotional ties owners often have to their creative works and the complexity of the subject matter; both of which raise questions of party dignity, process fatigue, and dispute culture. However, the unique needs of creative litigants (such as confidentiality and the need for speedy resolution) also support mandating mediation in the context of IP disputes. Since IP, especially with the onslaught of AI-generated content, threatens to increase the docket congestion in civil courts,[7] there is no time like the present to critically evaluate the absence of mandated mediation in this context.

II. Why IP Litigation Is Uniquely Suited to Mediation

Intellectual property disputes, especially those involving creatives, demand flexible, forward-looking resolutions that traditional litigation often fails to provide. This is not only because of the variety of industries and legal ownership structures encompassed by IP law, but also because of the commonalities across the scope of IP disputes that pair particularly well with ADR techniques.

One commonality is the emotional ties an IP creator may have to the subject matter involved in a legal dispute. There is real emotional connection, often reflected in distinct artistic output (warranting copyright protection) that takes tangible labor to produce into intellectual property.[8] The emotional weight burdening IP, some of which may also reflect years of a particular creators’ iterations, adds a uniquely personal layer to IP disputes which may not be adequately evaluated in a courtroom-litigated solution.

Similarly, the complexity of IP subject matter warrants particular expertise which may not be available in the courtroom setting. Disputing parties’ ability to achieve litigation status on a matter does not guarantee that they will be presenting to a judge or jury with the necessary confidence or experience to make critical evaluations of highly technical subject matter.[9] Additionally, courtroom remedies are inherently constrained and may not match up to the complexity of the dispute at hand. Mediation allows room for creative solutions in IP disputes such as licensing agreements, forward royalties, co-credits, or confidentiality.[10] Confidentiality may offer a particular advantage in the context of patent disputes, given that any publication of proprietary information may risk negating a patent’s validity in the future.[11] This can also be beneficial in a mandatory mediation context because “rather than one party receiving a judgment and the other party losing all [IP] rights, ADR offers the possibility of mutual settlement.”[12] In fact, mediation has already become an attractive dispute resolution option for parties in the music industry, who seek to avoid public litigation and protect ongoing business interests.[13]

There is also often a pressing need for time-sensitive resolution in IP matters. This is in part due to the high reputational stakes of the subject matter. IP plays a core role in establishing a marketable brand for both corporations and individuals alike. This brand may represent advances over the current status quo, be it art, patents, or market share. Time lost due to time spent in litigation may diminish, or even completely dissipate the value of the IP at issue.[14] This fact adds unique dimensions of both privacy concerns and time sensitivity to resolving these types of disputes. These realities warrant mandating a process that is better suited to preserving party dignity, avoiding process fatigue, and improving dispute culture within a relatively unique area of the law.

III. Legal Framework in Texas: Discretion, Not Yet Duty

While Texas law encourages mediation, it stops short of mandating it—even when the circumstances clearly call for it. Chapter 154 of Texas Civil Practice & Remedies Code authorizes court-ordered ADR[15] and Travis County Local Rules give judges discretion to refer cases.[16] However, studies have shown that inconsistency in enforcement often leaves the benefits of mediation underutilized.[17]

A patchwork of discretionary enforcement undermines predictability and party expectations. Notably, voluntary mediation has historically had low participation nationwide and does not always reflect the same degree of improved judicial efficiency as shown in a mandated ADR context.[18] While the statistics supporting the benefits of mandated mediation are imperfect, the known benefits still strongly support mediation in the specific context of IP disputes. Ultimately, the success of mediation programs depends heavily on consistent judicial referral; voluntary schemes have historically produced underwhelming impacts on docket congestion and party satisfaction.[19]

Because of the specific characteristics of IP disputes, Travis County is an ideal testing ground for mandated mediation. Given the city’s creative and tech heavy industry presence, mandatory mediation offers parties the opportunity for both more efficient and comprehensive dispute resolution.

IV. The Case for Mandatory Mediation in IP Civil Litigation

Making mediation mandatory in Travis County IP civil disputes would promote early resolution, preserve reputations, and provide more thorough resolution. The high stakes and complex nature of many IP disputes greatly extends their courtroom resolution time.[20] Mediation, but especially mandated mediation, offers these niche litigants the opportunity to resolve their claims in significantly less time while benefitting the reputations of both parties in the process. Furthermore, mediation generally results in better long-term compliance due in part to the detailed nature of mediation agreements.[21] The benefit in an IP context is twofold: potentially greater compliance of both parties and a more thorough resolution better suited to the inherently complex nature of the disputed subject matter.

Critics may argue that mandatory mediation infringes upon party autonomy, treating litigants paternalistically by compelling participation in settlement efforts. Voluntary mediation programs “typically fail to attract a substantial number of participants,”[22] but mandatory programs improve participation while risking parties feeling forced. However, requiring parties merely to attend and engage in a confidential, interest-based dialogue does not strip them of control over their ultimate decision to settle. As emphasized in Getting to Yes, principled negotiation is most effective when it is voluntary for parties at the outcome stage, even if external structures (such as mandatory mediation) encourage engagement at the process stage.[23] Not only this, but principled negotiation also allows for the disclosure of soft interests often inherent to IP disputes such as creative recognition, future rights, and reputational considerations that courts cannot adjudicate thoroughly. Mandatory mediation thus fosters opportunities for resolution and creative deal design without eroding the fundamental rights of litigants to proceed to trial if settlement proves unattainable.

V. Practical Implementation: Recommendations for Travis County

While the legal authority already exists in Travis County, a local policy shift could standardize the use of mediation in IP disputes and maximize its impact. The Travis County Local Rules are ripe for expansion and procedural specification regarding IP disputes.[24] In fact, the framework for procedural safeguards against unnecessary delay in time-sensitive IP cases is already built in and would be easily modifiable for IP cases already set for trial.[25] Furthermore, it is state policy “to encourage the peaceable resolution of disputes.”[26] Texas Policy section 154.002 already includes an added specification for special consideration of disputes involving particular subject matter.[27] Given the state’s precedent for placing an added emphasis on ADR tactics for particularized subject matter, there is strong support for mandating mediation in IP disputes. While not a perfect solution, mandating mediation upholds Texas state policy while also presenting the best legal solution for specialized IP subject matter.

VI. Conclusion

Exploring the merits of mandatory mediation in Travis County intellectual property disputes offers an important opportunity to recalibrate the dispute resolution process toward outcomes that better align with party interests, judicial efficiency, and substantive fairness. Austin’s distinctive convergence of creative and technological industries makes it a particularly appropriate jurisdiction to implement such a policy shift. Although current local rules and Texas statutes provide courts with the discretion to refer cases to mediation, it has not been empirically proven that discretion consistently produces the level of participation or docket relief that mandatory mediation could achieve.

Concerns about paternalism, while worth acknowledging, do not justify foregoing the substantial benefits of structured negotiation. Intellectual property disputes, in particular, present unique challenges that traditional litigation is often poorly equipped to address. As discussed, mediation provides a structure for parties to articulate not only their legal claims but also their reputational, relational, and creative interests, offering the possibility of outcomes that more accurately reflect the true dimensions of the dispute. These features are particularly critical in time-sensitive IP contexts, where delay can irreparably erode the value of the underlying rights.

The existing statutory and procedural frameworks already support the broader policy of promoting alternative dispute resolution. By formally mandating mediation for civil IP cases, Travis County would not only further that policy but also create a more adaptive, creative, and just dispute resolution environment for a sector of litigants whose needs demand particularized attention. Given the increasing role of intellectual property in shaping both the local economy and individual livelihoods, now is an appropriate time to formalize mediation as a required step in the civil litigation process. While no procedure guarantees perfect outcomes, mandatory mediation offers a pragmatic and principled approach to resolving IP disputes in ways that litigation alone too often cannot achieve.

Mandatory mediation in civil IP litigation ultimately aligns legal process with the values of efficiency, justice, and creativity. It is my opinion that the law should not merely adjudicate creative work but create space for resolution that honors it. In the case of IP disputes in Travis County, that role of the law is best enforced through mandatory mediation.

  • J.D. Candidate at The University of Texas School or Law, 2026. Paper completed to fulfill Alternative Dispute Resolution course requirements under the instruction of Sara Saltmarsh. ↑
  1. See Matthew H. Ormsbee, Music to Everyone’s Ears: Binding Mediation in Music Rights Disputes, 13 Cardozo J. Conflict Resol. 225 (2011). ↑
  2. See Jessica Pearson, An Evaluation of Alternatives to Court Adjudication, 7 Just. Sys. J. 420 (1982). ↑
  3. This does not reflect the author’s opinion on mandating mediation in all subject matter civil disputes. Furthermore, this paper presumes under the assumption that mediation should be mandated in Travis County IP disputes only if the case has not been settled through other means (i.e., settlement meeting, written settlement offers, etc.). ↑
  4. Local Rules of Civil Procedure and Rules of Decorum, District Courts of Travis County, Texas R. 2.2 (amended Nov. 15, 2024). ↑
  5. Local Rules, supra note 4. ↑
  6. While copyright and patent infringement are typically litigated at the federal level, even some cases involving this subject matter can have related state claims. On the other hand, most civil IP disputes involving state-level rights (such as trade secrets, right of publicity, state unfair competition, and state copyright contract disputes) fall under local jurisdiction and are therefore controlled by the Travis County Local Rules and Texas state ADR statutes—the focus of this paper. Notably, § 154.021(c) of the Texas Civil Practice and Remedies Code prohibits courts from ordering mediation in actions subject to the Federal Arbitration Act (9 U.S.C. §§1-16). Tex. Civ. Prac. & Rem. Code § 154.021(c). ↑
  7. Yonathan A. Arbel, Judicial Economy in the Age of AI 5–6 (Nat’l Civ. Just. Inst. 2024). (“AI can bring about a litigation boom. . . . The naming-blaming-claiming model of litigation suggests a pyramid filtering model that prevents many individuals from even thinking about their accidents as legal matters. AI Assistant can assist with these pent-up claims by articulating matters in legally cognizable terms, thereby unearthing an even larger volume of cases.”). ↑
  8. Ormsbee, supra note 1 at 251 (Noting that “like authors of literary or dramatic works, musicians invest creativity in providing their compositions with sufficient distinctive qualities to achieve copyright protection.”). ↑
  9. Cf. David A. Bernstein, A Case for Mediating Trademark Disputes in the Age of Expanding Brands, 7 Cardozo J. Conflict Resol. 139, 155 (2005) (purporting that generally, an informed neutral party may allow for more efficient resolution of IP disputes); see also Paul M Grinvalsky, Idea-Expression in Musical Analysis and the Role of the Intended Audience in Music Copyright Infringement, 28 Cal. W.L. Rec. 396 (1992) (noting how very little of the public is equipped to accurately analyze music, much less reliably discern infringement). ↑
  10. See Ormsbee, supra note 1 at 256. ↑
  11. See Friederike Heckmann & Thorsten Bausch, The Use of Mediation in Settling Patent Disputes, Int’l In-House Couns. J., Autumn 2018, at 2. ↑
  12. Ormsbee, supra note 1 at 257. ↑
  13. Id. at 230 ↑
  14. See Steven J. Elleman, Problems in Patent Litigation: Mandatory Mediation May Provide Settlements and Solutions, 12 Ohio State J. on Disp. Resol. 759, 761 (1997). ↑
  15. Tex. Civ. Prac. & Rem. Code § 154.022. ↑
  16. See Local Rules, supra note 4. ↑
  17. See, Pearson, supra note 2, at 438. ↑
  18. Id. ↑
  19. Id. ↑
  20. Patent Litigation 101, Thomson Reuters (Oct. 27, 2022) https://legal.thomsonreuters.com/blog/patent-litigation-101/ [https://perma.cc/KKT4-5NSJ] (noting that, for patent litigation specifically, lawsuits “will take on average from three to five years”). ↑
  21. See Pearson, supra note 2 at 434. ↑
  22. Id. at 427. ↑
  23. See generally Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, 18 (3d ed. 2011) (“If th[e parties] are not involved in the process, they are hardly likely to approve the product.”). ↑
  24. See Local Rules, supra note 4. ↑
  25. See id. (“Consistent with Rule 503.6(b) of the Texas Rules of Civil Procedure, the Justice Courts will not order mediation or any alternative dispute resolution process in an eviction case if it would delay trial.”). The author contends that this safeguard framework supports the “ripeness” of Travis County local rules for standardizing mandated mediation for IP disputes. For more on the general time imperative specific to the IP context, see Kaleena Scamman, ADR in the Music Industry: Tailoring Dispute Resolution to the Different Stages of the Artist-Label Relationship, 10 Cardozo J. Conflict Resol. 169, 289 (2009) (“Being a shorter process, ADR is well suited for businesses in which time is critical, like the music industry where there are deadlines and public expectations to meet.”). ↑
  26. Tex. Civ. Prac. & Rem. Code § 154.002. ↑
  27. See id. (“[W]ith special consideration given to disputes involving the parent-child relationship . . . .”) ↑