As Bratz/Mattel Mediator Speaks, Mike Young Wonders If It's Too Much
In Friday's Daily Journal, mediator and former U.S. ambassador Pierre-Richard Prosper talks about his efforts to help the Bratz/Mattel parties settle their long-running patent infringement lawsuit. Mediator Mike Young wonders about mediation confidentiality as both Prosper and counsel talk about the potential to settle the case and the way in which trial proceedings have impeded resolution.
Though the disclosures are general, I'd be cautious in talking to the press about on-going mediations, particularly where the mediator is talking to the parties nearly every day as Prosper says he is.
There's a word to the wise contained in today's appellate opinion on mediation confidentiality Rael v. Davis, expressly holding that all parties to a mediation must agree to waive confidentiality in writing and in person, not through counsel. Excerpts from the DJ article troubling Mike are below. You can read the entire article only if you're a subscriber.
September 19, 2008
DOLL DIPLOMACY
A former ambassador is called in as a mediator to help toy makers settle their expensive differences.
By Jason W. Armstrong
Daily Journal Staff WriterRIVERSIDE - Pierre-Richard Prosper has helped guide a lot of high-stakes negotiations. His job as U.S. ambassador in charge of the secretary of state's Office of War Crimes Issues several years ago included forging agreements with foreign ministers on the return of their nationals held at Guantanamo Bay, Cuba.
Later, along with his duties as counsel at Arent Fox in Los Angeles, Prosper became an oft-tapped mediator in complex cases . . .
But he said this week his latest meditation - helping to settle a four-year federal court battle that is essentially a hair-pulling dust-up between two dolls - has proven to be one of his thorniest assignments. . . .
"We are in the midst of litigation - the fog of war," Prosper said. "Both parties firmly believe in the strength of their positions. Getting them to move from their respective corners is a major challenge."But Prosper said he "firmly" believes "there is an agreement out there that can be reached."
"The real question is, is there the political will to reach such an agreement?" he said. "That's the harder issue."
The litigation involving the edgy, wide-eyed Bratz - dolls credited with cutting into sales of Mattel's longstanding Barbie - has been gritty: Mattel sued MGA, accusing the Bratz manufacturer of pirating its concept for the highly lucrative line by working on the idea with a Mattel employee . . .
Christa M. Anderson, an attorney for Bryant, said Prosper's persistence stood out. While she said she couldn't comment directly on his negotiations in the case, Anderson said he "worked very hard" to achieve a consensus.
"He's good at bringing the parties back to the table again and again through creative ideas and persistence," Anderson, a partner with Keker & Van Nest in San Francisco, said. "He's very diligent."
In the Mattel-MGA spat, Prosper said the parties have appeared close to an agreement on several occasions. But numerous clashes between the lawyers and sudden twists and maneuvers in the trial drove a wedge into discussions, Prosper said. He declined to discuss specific instances."There were a couple of times in the past weeks where we have moved closer to [an agreement], but then because of events in court its caused us to take a step back," Prosper said.
Prosper declined to comment on the negotiations, but Larian told the Wall Street Journal last week that he was "open to all different options as long as they are reasonable." He told the paper he would be willing to share with Mattel a portion of royalties from the "first generation" of Bratz dolls manufactured in 2001, but he refused to share other revenues and future sales of the line.
Thomas Nolan, lead trial attorney for MGA in the case, declined to comment on settlement talks. He is a partner with Skadden Arps Slate Meagher & Flom in Los Angeles.
John Quinn, lead trial lawyer for Mattel, also wouldn't discuss the negotiations. Quinn is a name partner with Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles.
But both men said they appreciated Prosper's tenacity.
He "won't give up," Quinn said.
Nolan agreed, and said he admires Prosper's "ability to stay calm" when "everyone else around him is emotional."
In the Bratz case, for the past several weeks, Prosper said he's had almost daily in-person or telephonic meetings with the lawyers and executive officers for Mattel and MGA.
"This case has an interesting landscape that has constantly shifted, so it's required almost daily communications with the parties," Prosper said.
Prosper has been credited with successfully negotiating, along with former Secretary of State Colin Powell and others, with Serbia to hand over former Yugoslavian leader How does Prosper compare war crimes negotiations to the doll fight he's now immersed in?"The parties are in the throes of litigation, and this is the most important thing to them," Prosper said. "But this case isn't about life or death. It's about dolls and money. There are more important things we should be spending our time and resources on."
