Mediation has long been center stage among dispute resolution processes. It affords parties and their counsel many well-known advantages: privacy, informality, an opportunity for a frank evaluation of the merits, and control, including the ability to manage the costs and risks of litigation as well as the outcome. Because mediators serve as advocates for settlement, they are able to design a process that best suits the nature of the dispute and the relationship between the parties. With the assistance of a mediator, the parties can move away from entrenched legal positions and consider what’s in their business interests.

Given mediation’s success rate and its embrace by corporate counsel, it is, perhaps, no surprise that the U.S. International Trade Commission (the USITC or Commission) established a pilot mediation program in 2008, which it converted into a permanent agency program in 2010. The USITC’s program is modeled on the successful program adopted by the Federal Circuit Court of Appeals in 2005.

USITC Overview and Practice
The USITC investigates allegations of unfair acts and competition in the importation of goods into the United States under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. The majority of section 337 investigations involve allegations of patent infringement, including whether imported products infringe a valid and enforceable patent or are made by means of a patented process. Section 337 investigations are also based on allegations of trademark and copyright infringement as well as trade secret and other forms of intellectual property misappropriation. If the Commission finds a violation of section 337, the primary remedy is an order excluding the importation of the infringing articles into the United States. The Commission may also issue a cease and desist order against any person found to be violating the act. Monetary damages for unfair practices in the import trade are not available under section 337.

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