THE ADVOCATE 707
VOL. 79 PART 5 SEPTEMBER 2021
A VIEW FROM
By Richard S. Levy*
THE ZIPPER AND DANIEL KAHNEMAN: WHAT THEY CAN TEACH US ABOUT
My client, a key executive with a consumer products company, was about
to participate in his first-ever mediation. I wasn’t too worried. The one-day
session was scheduled in California to settle a U.S. patent infringement lawsuit
in its early stages. I knew my client was well prepared both on the
issues and on the ebbs and flows of a typical mediation. However, I had not
reckoned on my client getting caught in “The Zipper”.
Let us pause here and consider the aspirations my client had coming into
this voluntary mediation. We will circle back to “The Zipper” below. As the
defendant in this lawsuit, my client’s business faced significant monetary
losses in the form of a possible monetary award and a certain expenditure
of legal fees. On the positive side of the ledger, the recent early evidentiary
discovery had revealed facts that supported several defences in our client’s
favour. Taking account of this, we had handicapped appropriate range-ofsettlement
The big smudge in this picture was that the U.S. patent attorneys defending
our client had estimated that well over US$100,000 in legal fees needed
to be incurred for eight to ten months before our client could have the suit
dismissed. This, above all, provided a strong incentive for my client to reach
a settlement by the close of the day-long mediation.
Going in, he was eager to finally meet the owner of the plaintiff company,
have a conversation with him and size him up. Our client, whose reasonable-
* Richard S. Levy practises intellectual property law in Montreal. He received mediation training from the Straus Institute of
Dispute Resolution and has mediated commercial disputes and harassment disputes within the federal public service, over
many years, in French and English. He also arbitrates domain name disputes for the Vancouver International Arbitration
Centre (the “Centre” or “VanIAC”) and is past chair of the ADR committee of the Intellectual Property Institute of Canada.
For seven years, he was general counsel of CCM, The Hockey Company.