United States International Trade Commission

Publication No. 4198

November 2010

Section 337 Mediation Program

Page 1

U.S. International Trade Commission

Table of Contents

Program Overview....................................................................................................................................................... 3

User Manual ................................................................................................................................................................. 7

Federal Register Notice.............................................................................................................................................. 11

Standing Protective Order for the Section 337 Mediation Program....................................................................... 13

Mediator Roster and Biographies ............................................................................................................................. 15

Mediation Program Forms ........................................................................................................................................ 25

•	 Certification of Receipt and Reading/Discussion of Mediation Materials

•	 Confidential Request to Enter Mediation

•	 Non-Disclosure Confidentiality Agreement for Parties, or Employees or Inside Counsel

•	 Non-Disclosure Confidentiality Agreement for Parties and Authorized Representatives of Parties

•	 Non-Disclosure Confidentiality Agreement for Mediators

•	 Confidential Evaluation of Mediation
Page 2

337 Mediation Program
Page 3

U.S. International Trade Commission

Program Overview - Section 337

EXECUTIVE SUMMARY

The U.S. International Trade 

Commission (“Commission”) offers an important 

forum for the litigation of intellectual property matters involving 

imported goods. The Mediation 

Program offers a risk-free, inexpensive, confidential and quick 

mechanism to evaluate whether 

settlement can be achieved in 

these cases. Even if settlement of 

all claims and issues is not possible, mediation may help narrow 

issues and claims in the investigation. All parties in Section 337 

practice will be made aware of the 

Mediation Program when new 

investigations are instituted.

BACKGROUND ON SECTION 337

Under Section 337 of the Tariff 

Act of 1930 (19 U.S.C. § 1337), the 

Commission conducts investigations into allegations of certain unfair practices in import trade. Most 

Section 337 investigations involve 

allegations of patent or registered 

trademark infringement. Other 

forms of unfair competition, such 

as misappropriation of trade 

secrets, trade dress infringement, 

passing off, false advertising, and 

violations of the antitrust laws, 

may also be asserted.

Section 337 investigations 

are initiated by the Commission 

following the receipt of a properly 

filed complaint that complies with 

the Commission’s Rules. A Commission notice announcing the 

institution of an investigation is 

published in the Federal Register 

whenever the Commission votes to 

institute a Section 337 investigation.

When an investigation is 

instituted, the Chief Administrative Law Judge at the Commission 

assigns an Administrative Law 

Judge (“ALJ”) to preside over the 

proceedings. Section 337 investigations are conducted in accordance with procedural rules that 

are similar in many respects to the 

Federal Rules of Civil Procedure. 

These Commission procedural 

rules (found in 19 C.F.R. Part 210) 

are typically supplemented by a 

set of Ground Rules issued by the 

presiding ALJ. The procedural rules 

and ALJ’s Ground Rules provide 

important instructions and details 

regarding such matters as the taking of discovery and the handling 

of motions.

A formal evidentiary hearing 

on the merits of a Section 337 case 

is conducted by the presiding ALJ 

in conformity with the adjudicative provisions of the Administrative Procedure Act (5 U.S.C. §§ 551 

et seq.). Hence, parties have the 

right of adequate notice, discovery, 

cross-examination, presentation of 

evidence, objection, motion, argument, and other rights essential to 

a fair hearing.

Following a hearing on the 

merits of the case, the presiding 

ALJ issues an Initial Determination (“ID”) on whether Section 337 

has been violated. That ID is certified to the Commission along with 

the evidentiary record. The Commission may review and adopt, 

modify, reverse or remand the ID, 

or it may decide not to review the 

ID. If the Commission adopts or 

declines to review an ID, the ID 

becomes the final determination of 

the Commission.

In the event that the Commission determines that Section 337 

has been violated, the Commission may issue an exclusion order 

Program Benefits

•	 Based on CAFC program 

•	 Program goal is settlement

•	 Experienced professionals

•	 Heightened confidentiality

•	 Narrows issues and/or 

claims in dispute

•	 Potentially shortens time 

for case resolution

•	 Cannot be used as basis for 

delay or extension of time 

in proceeding before ALJ

•	 Businesses have greater 

certainty of settlement 

outcomes

•	 Reduced costs for business 

while maintaining control 

of IP
Page 4

337 Mediation Program

barring the products at issue from 

entry into the United States, as 

well as “cease and desist” orders 

directing the violating parties to 

cease certain actions. The Commission’s exclusion orders are enforced by U.S. Customs and Border 

Protection. Commission orders 

become effective within 60 days 

of issuance unless disapproved by 

the President for policy reasons. 

Appeals of Commission orders 

entered in Section 337 investigations are heard by the U.S. Court of 

Appeals for the Federal Circuit.

By statute, Section 337 investigations must be completed “at 

the earliest practicable time.” Accordingly, the Commission places 

great emphasis on the expeditious 

adjudication of Section 337 investigations. 

The Commission Rules provide 

that a party may move to terminate an investigation as to one or 

more of the respondents on the 

basis of a licensing or other settlement agreement, Rules 210.21(a)

(2) and (b), 19 C.F.R. § 210.21(a)

(2) and (b). The Commission Rules 

also provide that an investigation 

may be terminated as to one or 

more respondents on the basis of 

a Consent Order. See Commission 

Rule 210.21(c). Consent Orders 

are typically entered upon the 

joint request of the complainant 

and a respondent in the form of a 

motion which contains the parties’ 

joint proposed Consent Order, but 

such proposed orders can be proffered by a respondent alone.

In recent years, the Section 

337 workload has increased 

substantially. For each of the last 

three fiscal years, October 1 to 

September 30, there were at least 

85 active cases. In FY 2010, 51 

new cases were instituted, exceeding the number of cases in any 

prior year. There is no sign that the 

pace of new complaint filings will 

decline in the foreseeable future.

ADVANTAGES OF SECTION 337

There are several advantages 

for litigants who choose to use 

Section 337 to litigate IP disputes. 

It is a “rocket docket” that is 

usually faster than federal district 

courts, where IP cases can take 

several years to complete. The 

USITC has experienced judges who 

work exclusively on IP cases. The 

possible remedies of exclusion 

orders and cease and desist orders 

provide a powerful tool with real 

commercial value to complainants. The companies involved are 

often large corporations, but small 

businesses can, and do, assert 

their rights and succeed in this 

venue. Products that have been 

the subject of past cases include 

Red Bull energy drinks, Nintendo 

Wii game systems, Vizio HDTVs, 

Apple and Nokia cell phones, and 

underground cable and pipe locators. Cases can be relatively small, 

involving two companies and one 

or two patent claims. They can also 

be complex, involving 20 or more 

companies and dozens of patent 

claims.

BACKGROUND ON SECTION 337 

MEDIATION PROGRAM

On October 28, 2008, the 

Commission established a pilot 

Does mediation deprive the parties of an adjudication (i.e., “win” or “loss”) on their 

claims and defenses?

If the parties settle their case in mediation then they would not proceed to an evidentiary hearing that 

would determine which party “wins” or “loses” on their claims and defenses. Eliminating the winner/

loser dynamic is a very important benefit of mediation because it creates a conciliatory environment for 

settling a case. Also, removing the identification of a “winner” or “loser” can help to preserve the business 

relationship of the parties, which can be of critical long-term benefit to them. Even if the case doesn’t 

settle from the mediation, the issues may be streamlined for adjudication. The parties may also obtain a 

clearer understanding of the strengths/weaknesses of the case. Clients report high satisfaction with court 

mediation processes generally. Parties maintain control of the process and outcome, unlike at a trial.

| Program Overview - Section 337
Page 5

U.S. International Trade Commission

mediation program for Section 

337 investigations. On August 

30, 2010, the Commission issued 

a revised User Manual that converted the pilot program into a 

permanent agency program. This 

program is aimed at facilitating 

the settlement of disputes and 

enhancing the efficiency of Section 337 by reducing the number 

of issues, patent claims, and/or 

respondents and otherwise assisting the Commission to manage its 

growing caseload.

All Section 337 investigations 

are eligible for participation in the 

program. An ALJ may nominate 

a particular 337 investigation for 

inclusion in the program or the 

litigating parties may individually or jointly request to participate. The Supervisory Attorney 

in Docket Services manages the 

program, providing administrative support to the mediators and 

parties. Further information about 

the program may be found on the 

Commission’s website at http://

www.usitc.gov/intellectual_property/mediation.htm.

ADVANTAGES OF MEDIATION 

PROGRAM

The mediation program 

provides a confidential, risk-free 

opportunity for parties to resolve 

their disputes expeditiously, at 

a lower cost and in a manner 

that can provide more business 

certainty. The basic documentation consists of a Users Manual 

and a Federal Register Notice. The 

Mediation Program is flexible so 

the parties remain in control of 

the proceeding. It is not “a cause 

for extensions of time,” so delay of 

the litigation cannot be the objective. The program is modeled on 

the successful Court of Appeals 

for the Federal Circuit Mediation 

Program. The roster is composed 

of experienced IP mediators, most 

of whom are listed on the Federal 

Circuit’s mediator roster or are 

former judges. Strict conflict-ofinterest standards apply. Mediations are intended to last one day, 

and are normally conducted at no 

expense to the litigants. If longer 

mediation sessions are required, it 

is expected the parties will compensate the mediator as a professional service provider.

Under the program, the mediator is likely to require the attendance at the mediation of a person 

with actual settlement authority. 

“Actual settlement authority” does 

not simply mean sending a person 

allowed to accept or offer a minimum or maximum dollar amount. 

Rather, the party representative 

should be a person who can make 

independent decisions and has the 

knowledge necessary to generate 

and consider creative solutions, 

e.g., a business principal. The 

participation of decision makers 

greatly increases the likelihood of 

obtaining a written agreement at 

the conclusion of mediation that 

spells out the terms of settlement. 

At a minimum, the mediation 

meeting should provide both sides 

with a realistic assessment of their 

case and some idea whether there 

is room for settlement.

If the parties pursue mediation will it slow down the 

Section 337 investigation?

A Section 337 Investigation is designed to provide swift resolution 

and mediation doesn’t disrupt the timeline for completion of the 

investigation. The preparation for mediation is minor in comparison with the preparation for the evidentiary hearing, so there is no 

wasted effort. Once the preliminaries are out of the way, mediation 

will often take a single day.
Page 6

337 Mediation Program | Program Overview - Section 337
Page 7

U.S. International Trade Commission

1. INTRODUCTION

The Commission has approved 

the creation of a program for 

the mediation of disputes 

arising in investigations under section 337 of the Tariff Act of 1930, as 

amended (“section 337”), pursuant 

to the Administrative Procedure Act, 

as amended. See 5 U.S.C. § 556(c)

(6)-(8), 572-74, 583.

The administrative management of the mediation program is 

coordinated by the Supervisory Attorney for Docket Services who will 

work with a professional mediator 

for conducting a settlement conference. The program is supervised by 

the Office of the Chairman in conjunction with the other members of 

the Commission.

The purpose of the mediation 

program is to facilitate settlement 

of disputes.

2. CERTIFICATION OF RECEIPT 

OF PROGRAM MATERIALS 

AND DISCUSSION

Upon filing a complaint, each 

complainant will receive materials explaining the Commission 

mediation program, including a 

copy of this Users’ Manual. Each 

proposed respondent will receive 

these same materials upon receipt 

of the complaint. The materials will 

include certifications relating to the 

receipt and understanding of these 

materials. A certification of receipt 

and understanding must be filled 

out and returned. The certification 

requirement may be satisfied in one 

of two ways: If a party has retained 

counsel, the lead counsel for the 

party may sign a certification that 

the party under his or her representation has received the materials and that counsel has discussed 

them with the party. If the party 

is not represented by counsel, a 

representative of the party (i.e., a 

business principal), may sign and 

return the certification attesting 

that he or she has read the materials. The required certification shall 

be returned to the Supervisory Attorney for Docket Services:

James R. Holbein

Supervisory Attorney,

Docket Services

U.S. International Trade Commission

500 E Street SW, Room 112

Washington, DC 20436

3. SELECTION OF INVESTIGATIONS

All section 337 investigations 

are eligible for participation in

the mediation program. Private 

parties may request participation 

by filing a Confidential Request to 

Enter Mediation, with copies served 

on all private parties. A request 

form will be available from the Office of Dockets and the http://www.

usitc.gov website. Such a request 

should be submitted to the Supervisory Attorney for Docket Services.

The presiding Administrative 

Law Judge may also refer investigations to the Supervisory Attorney 

for Docket Services, who may 

discuss the possibility of mediation 

with the parties. In furtherance 

thereof, the presiding Administrative Law Judge may require attendance at mediation sessions, 

pursuant to 5 U.S.C. § 556(c)(6),(8). 

Required attendance at a mediation 

session will not extend beyond one 

day.

While it is expected that all or 

nearly all participation will be initiated by the counsel for the parties 

User Manual for Commission Mediation

Program for Section 337 Investigations

If an ALJ suggests mediation, is it a sign that your case is weak?

The Mediation Program User Manual makes clear the ALJ’s authority to order the parties to attend at 

least an initial consultation on mediation. Therefore, parties and their attorneys should not equate exploration of settlement through mediation as a negative reflection on the merits of their case. In fact, negotiated settlements are favored by the Commission and the courts as a matter of policy. An ALJ encouraging 

negotiations or mediation can be seen as a recognition that sometimes business solutions exist that have 

little to do with the merits of a dispute.
Page 8

337 Mediation Program

or the presiding Administrative 

Law Judge, the Supervisory Attorney for Docket Services may also 

suggest mediation to the parties in 

an investigation, or to the presiding Administrative Law Judge, for 

inclusion in the program.

4. MEDIATORS

The mediators are outside experts and consultants experienced 

in both patent litigation and mediation. The Commission maintains 

a roster of mediators who have 

agreed to serve in a pro-bono capacity for Commission investigations, 

and who have been pre-screened by 

the Commission.1 Most of these 

mediators have served in a similar 

capacity for the U.S. Court of Appeals for the Federal Circuit.2

 The 

Commission also maintains an 

open list of private mediators. 

Mediators and applicants to 

be mediators must not be in active 

practice. For purposes of these 

guidelines “not be in active practice” means that the applicant or 

mediator is not appearing, and will 

not appear while a member of the 

Commission’s mediation roster as a 

counsel for a party or amicus in any 

matter before the Commission or 

from the Commission.

The Supervisory Attorney for 

Docket Services assists the parties 

in selecting a mediator for each 

investigation. Parties may select a 

mediator from the roster of mediators who have agreed to serve in a 

pro-bono capacity. The pro-bono 

mediators are reimbursed by the 

Commission for travel and lodging inside the United States, and 

mediation is at no cost to the parties. Reimbursements for travel and 

lodging are subject to government 

regulations, and mediators should 

coordinate with the Commission 

in advance of travel. The parties 

may also select a mediator from the 

open list of private mediators. The 

parties may also select a private 

mediator that they have identified 

on their own. Parties that select a 

private mediator would compensate 

the private mediator by agreement 

among the parties and the private 

mediator.

Before approving a mediator, the Supervisory Attorney for 

Docket Services will inquire into 

conflicts of interest. If a mediator 

is affiliated with a law firm and that 

law firm represents or has represented a party to the investigation within the last five years, the 

mediator will recuse him or herself. 

The mediator must not represent 

either party or any amicus for any 

purpose, must disclose all past 

relationships that he or she has had 

with counsel, counsels’ firms, and 

the parties, and must disclose any 

potential “issues” conflicts. Mediators are required to decline from 

participating in any investigation in 

which there is a conflict of interest, 

in which they perceive a conflict of 

interest, or in which a reasonable 

person would perceive a conflict 

of interest. Mediators are required 

to err in favor of recusal when in 

doubt.

1 No mediator is expected to serve in a pro-bono capacity beyond the required, single-day mediation session. The parties would be free 

to engage the mediator on terms agreeable to all and consistent with the protections indicated in this manual if they wish to extend 

the mediation beyond the original, single-day session.

2 Individuals wishing to serve as mediators may submit an application to the Commission. The application will be available on the 

Commission website.

| User Manual for Commission Mediation Program for Section 337 Investigations

Is Confidentiality adequately protected in mediation?

Under the Commission’s mediation program, the parties, their 

representatives, and the mediator are required to sign confidentiality agreements. Those agreements assure that the mediation 

process is completely separate from the investigative process before 

the ALJs and the Commission. Furthermore, the mediator holds in 

confidence all of the information disclosed during the mediation 

process under the terms of a special protective order, so there is no 

risk in communicating with the mediator or with opposing counsel/

parties. Neither the ALJ assigned to the investigation nor the Commissioners have access to anything that is disclosed or exchanged 

in the mediation process. If a settlement results, then the only 

information known to the ALJ and the Commissioners will be the 

confidential settlement agreement that is filed with the ALJ, when 

termination of the investigation is requested.
Page 9

U.S. International Trade Commission

After assignment, the mediator 

may ask the representatives whether that party thinks the investigation is amenable to settlement and 

why or why not, which issues are 

negotiable, and whether there are 

any jurisdictional issues. The mediator may review public pleadings and 

documents available on EDIS in any 

case arising out of the same dispute. The mediator may also ask for 

brief confidential written submissions to help evaluate areas of negotiation. Confidentiality is discussed 

further in Section 5 of this manual, 

below.

When available at the Commission and desired by the parties, space will be provided for the 

mediation to take place.

5. CONFIDENTIALITY

Mediation communications are 

confidential as provided by law, by 

non-disclosure agreement, by the 

Standing Commission Protective 

Order for Mediation, by the protective order of the Administrative 

Law Judge, and by program design. 

Neither the Commission investigative attorney nor the Administrative Law Judge nor any Member of 

the Commission nor any member 

of the Office of the General Counsel conduct, participate in, or have 

knowledge of the mediation proceedings, other than the fact that 

an investigation is in mediation, as 

explained more fully herein.

Each mediator must sign a nondisclosure agreement. Each party 

representative and any in-house 

counsel must sign a non-disclosure 

agreement. Each outside counsel 

must sign a non-disclosure agreement. The non-disclosure agreements place the participants under 

the Standing Commission Protective Order for Mediation which 

supplements any protective order 

issued by the presiding Administrative Law Judge in an investigation. 

The non-disclosure agreements 

also supplement the existing legal 

protections for confidentiality provided, inter alia, by 5 U.S.C. § 574, 

as set forth therein.

Any confidential written submissions for the mediator are for 

the eyes of the mediator only and 

are not part of the record of the 

investigation and will not be shared 

with other parties, any Administrative Law Judge, or the Commission 

in any way. The mediator communicates about mediation only with the 

Supervisory Attorney for Docket 

Services. The Supervisory Attorney 

for Docket Services does not communicate with the Administrative 

Law Judges, the Office of Unfair 

Import Investigations, the Office of 

the General Counsel, or the Commissioners about the substance of 

mediation proceedings.

Any settlement agreement that 

may arise from mediation will be 

reviewed for consistency with the 

public interest by the Commission 

investigative attorney, the presiding 

Administrative Law Judge, and the 

Commission under the normal procedures of Commission rule 210.21. 

Nevertheless, the substance of 

mediation discussions is not shared 

with the Commission investigative 

attorney, the presiding Administrative Law Judge, the Office of the 

General Counsel, or the Commissioners.

The substance of the mediation is confidential and may not be 

disclosed by the mediator or any 

participants, except in the course of 

litigation concerning enforceability 

of any agreements reached through 

mediation, or as permitted by the 

terms of the non-disclosure agreements and statute. All mediators 

must protect the confidentiality of 

the substance of all proceedings, 

as set forth in the non-disclosure 

agreement for mediators.

The Supervisory Attorney for 

Docket Services may discuss statistical information with the Commission needed to assess the mediation 

program itself. During the program, 

the Commission may from time 

to time have discussions with the 

Supervisory Attorney for Docket 

Services and mediators with a view 

to revising the overall program 

while it is ongoing, as appropriate 

and necessary.

6. PARTICIPATION IN 

PROGRAM FOR MEDIATION

Mediation is a flexible process 

intended to help the parties achieve 

settlement where possible. Often 

the mediator is not bound by a 

defined formula or approach to 

mediating a case and the mediator 

conducts the mediation as he or 

she deems appropriate. Mediation 

ceases at any time the mediator 

concludes that further efforts will 

not be fruitful.

The purpose of mediation is a 

settlement of the case. This may include a global settlement. Under the 

program, the mediator is not asked 

to narrow the issues in dispute, although the parties are free to agree 

to do so. A narrowing of the issues 

may be reflected in party briefs to 

the Administrative Law Judge.
Page 10

337 Mediation Program

If the parties agree to participate in mediation or the Administrative Law Judge has required 

attendance at a mediation session, 

the mediator may require the attendance at the mediation of a person 

with actual settlement authority. 

“Actual settlement authority” does 

not simply mean sending a person 

allowed to accept or offer a minimum or maximum dollar amount. 

Rather, the party representative 

should be a person who can make 

independent decisions and has the 

knowledge necessary to generate 

and consider creative solutions, i.e., 

a business principal. These requirements may be modified or waived 

by the mediator if the circumstances dictate and the parties concur.

7. NO DELAY TO PROCEEDINGS 

BEFORE THE PRESIDING ADMINISTRATIVE LAW JUDGE

The Commission does not 

contemplate that mediations would 

be a cause for extensions of time in 

proceedings before the presiding 

Administrative Law Judge. The goal 

of mediation is to help the parties 

achieve an expeditious resolution to 

any disputes, not to cause delay.

8. THE CONCLUSION OF

MEDIATION

The purpose of the mediation program is to help the parties 

achieve settlement. The mediation 

program provides a confidential, 

risk-free opportunity for parties 

to resolve their dispute. Unlike 

arbitration, where a decision may 

be binding, mediation will result in 

a settlement only if all parties agree 

on that resolution. If settlement is 

reached, then the agreement must 

be in writing and binding on all parties. If the parties have settled their 

dispute, the parties jointly must 

file a motion for termination of the 

investigation based upon a settlement agreement or seek a consent 

order regarding termination.

9. NONCOMPLIANCE SANCTIONS

The program is subject to the 

standards of confidentiality provided, inter alia, in the non-disclosure 

agreements and the administrative 

dispute resolution act (5 U.S.C. § 

574) in addition to normal rules of 

protection of confidential business 

information and all other applicable 

rules of conduct which govern other 

proceedings before the Commission. Motions for sanctions may be 

made to the Chief Administrative 

Law Judge who may assign the 

motion to an Administrative Law 

Judge other than the presiding Administrative Law Judge. Notwithstanding the confidentiality provisions of Section 5 of this manual, 

the mediator or the Supervisory 

Attorney for Docket Services may 

communicate with the judge ruling 

on the motion only to the extent 

necessary to explain any recommendation for sanction.

10. EVALUATION

At the conclusion of any mediation, an evaluation questionnaire 

will be given to the parties who are 

encouraged to return the evaluation 

questionnaire to the Supervisory 

Attorney for Docket Services.

| User Manual for Commission Mediation Program for Section 337 Investigations

Can mediation be successful if the parties could not 

reach settlement in their own negotiations?

Mediation is often used successfully to resolve disputes after the 

parties have unsuccessfully negotiated on their own. Unlike partyto-party negotiations, mediation uses an experienced mediator to 

facilitate communications between the parties and to avoid or overcome issues that can create an impasse to settlement. Furthermore, 

although mediation is a form of negotiation, it is a unique process that can be tailored to meet the parties’ particular needs and 

circumstances. Likewise, while complaints are often filed following 

failed negotiations with individual respondents, mediation provides 

the opportunity for facilitated settlement negotiations between the 

complainant and all of the respondents contemporaneously. Convening at the same time parties who have a mutual interest in the 

use of the intellectual property at issue permits an expanded discussion that can be collaborative and resolve the dispute between 

the complainant and respondents in a single settlement. A mediator can assist the parties in identifying complementary interests 

and addressing concerns to reveal previously unexplored areas of 

common interest/benefit.
Page 11

U.S. International Trade Commission

Federal Register Notice

ISSUANCE OF REVISED USERS’ MANUAL FOR 

COMMISSION MEDIATION PROGRAM UNDER 

SECTION 337 OF THE TARIFF ACT OF 1930

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

SUMMARY: Notice is hereby given that the Commission has issued a revised Users’ Manual for its program for the mediation of investigations under section 

337 of the Tariff Act of 1930.

FOR FURTHER INFORMATION CONTACT: James 

Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436, telephone (202) 205-3065. General 

information concerning the Commission may also be 

obtained by accessing its Internet server at http://

www.usitc.gov. Hearing-impaired persons are advised 

that information on this matter can be obtained by 

contacting the Commission’s TDD terminal on (202) 

205-1810.

SUPPLEMENTARY INFORMATION: On November 

8, 2008, the Commission published notice that it had 

approved the initiation of a voluntary pilot mediation 

program for investigations under section 337 of the 

Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”). 73 Fed. Reg. 65615 (Nov. 8, 2008).

The Commission has determined to issue a revised 

Users’ Manual for its program for the mediation of 

investigations under section 337 of the Tariff Act of 

1930. The revised Users’ Manual reaffirms the authority of administrative law judges and the Commission 

under the Administrative Procedure Act to require 

attendance at a settlement conference, including the 

use of alternative dispute resolution; reaffirms the 

confidential nature of mediation proceedings; provides 

that parties will receive materials regarding the program upon the filing of a complaint and certify receipt 

and reading/discussion thereof; and provides that 

the Commission will maintain an open list of private 

mediators in addition to the roster of pre-screened 

pro-bono mediators.

The authority for the Commission’s determination 

is contained in the Administrative Procedure Act, as 

amended, see 5 U.S.C. § 556(c)(6)-(8), 572-74, 583, 

and in sections 335 and 337 of the Tariff Act of 1930, 

as amended, 19 U.S.C. §§ 1335, 1337.

By order of the Commission.

/s/

Marilyn R. Abbott

Secretary to the Commission

Issued: August 30, 2010

Can a case settle through mediation even in the early stages when little or no discovery has occurred?

There are many reasons parties choose to settle a case irrespective of how much information they have 

obtained from the other parties. To mediate, the parties only need sufficient information to reasonably 

assess risk and analyze options. Parties do not have to produce anything at the mediation that they do not 

wish to disclose.
Page 12

337 Mediation Program | Federal Register Notice
Page 13

U.S. International Trade Commission

UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

COMMISSION ORDER

On October 29, 2008, the Commission issued notice of the initiation of a pilot program

for the mediation of disputes in investigations conducted under section 337 of the Tariff Act of

1930, as amended (19 U.S.C. § 1337) (“section 337”). 73 Fed. Reg. 65615 (November 4, 2008). 

The Commission also approved a Users’ Manual for the Commission Pilot Mediation Program

(“Users’ Manual”). Id.

In accordance with Commission rules 201.6, 210.5, 210.34, and 210.39 (19 C.F.R. §§

201.6, 210.5, 210.34, and 210.39), the Commission hereby ORDERS THAT --

1. The parties to an investigation that has been submitted for mediation are permitted

to disclose confidential business information covered by a protective order in the

investigation to a Mediator, appointed by the Commission pursuant to the pilot

mediation program to assist in the settlement of an investigation, who has signed

the Commission Non-Disclosure Confidentiality Agreement for Mediators.

2. The parties to an investigation subject to mediation may also designate additional

material as confidential business information and provide it to a Mediator solely

for the purpose of the mediation process. 

3. 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.

4. 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. 

Standing Protective Order for the Section 

337 Mediation Program
Page 14

337 Mediation Program

For the purposes of the pilot mediation program, the Commission hereby invokes the

provisions of Commission rule 201.4, 19 C.F.R. § 201.4, to issue this protective order under

Commission rule 210.34(a). This order shall serve as a standing protective order under 19

U.S.C. § 1337(n) for all Commission investigations under section 337 submitted for mediation. 

By order of the Commission.

 /s/ 

_________________________

Marilyn R. Abbott

Secretary to the Commission

Issued: June 17, 2009

| Standing Protective Order for the Section 337 Mediation Program
Page 15

U.S. International Trade Commission

Mediator Roster and Biographies

•	 KAREN I. BOYD

California

•	 GEORGE L. GRAFF

New York

•	 WALTER D. KELLEY, JR.

Washington, DC

•	 JUDITH MEYER

California, Pennsylvania, Idaho

•	 PAUL MICHEL

Washington, DC

•	 DAVID WILLIAM PLANT

New York

•	 HARRIE SAMARAS

Pennsylvania

•	 GEORGE H. SPENCER

Washington, DC

Wouldn’t it be better to meet with the ALJ at a settlement conference and proceed 

to a hearing if settlement fails than to meet with a mediator who doesn’t have the 

power to decide the case?

Mediation’s significant advantage over litigation is control over the outcome. The USITC has compiled 

a roster of outside volunteers who are experienced in both patent litigation and mediation to serve as 

mediators. They assist parties in negotiating an outcome that meets their particular needs. That outcome 

is not limited to the remedies available from the Commission -- exclusion or cease and desist orders. For 

example, the litigation cannot result in a joint venture, a licensing or cross-licensing agreement or provide 

monetary compensation for past infringement. It cannot include other intellectual property or resolve 

other ongoing disputes between the parties that were not a part of the complaint. As with any settlement 

agreement, there is no need to amend the complaint for the mediated settlement to include provisions, 

territories, technologies, and details far exceeding the scope of the complaint. Mediation is an opportunity for the parties to explore their underlying interests and creative settlement options, not limited to 

exclusion orders or cease and desist orders. 

The Commission maintains a roster of experienced professionals who have volunteered to serve as mediators for Commission investigations. These experts have significant experience in both patent litigation and mediation, have met the Commission’s pre-screening criteria, and have agreed to serve in a pro-bono 

capacity.

The Supervisory Attorney for Docket Services assists parties in selecting a mediator for each investigation. 

The Commission’s current Mediator Roster includes:
Mediator Biography

Page 16

337 Mediation Program | 2010 Mediator Roster and Biographies

Karen I. Boyd is a founding partner in Turner Boyd LLP. She is an Intellectual Property litigator representing emerging and established life sciences and high technology companies in intellectual property and related litigation. She also serves as a private and Court-appointed 

mediator, specializing in dispute resolution and case management mediation of intellectual property cases and other complex civil litigation. Her 

broad experience makes her a frequently invited speaker at conferences 

on patent and biomedical issues 

Before founding Turner Boyd, Ms. Boyd was a partner at Fish & Richardson P.C. in Redwood City, CA. At Fish & Richardson, Ms. Boyd was a 

patent litigator, focusing on the pharmaceutical field (both branded and 

generic), as well as biotechnology and medical devices. 

Ms. Boyd has been a Lecturer on Biotechnology and Chemical Patent Law 

at U.C. Berkeley School of Law, Berkeley, CA, since 2002. She was also an Adjunct Professor focusing on Patent 

and Trade Secret Law at U.C. Hastings College of the Law, San Francisco, CA. She was a Law Clerk to the Honorable Paul R. Michel at the United States Court of Appeals for the Federal Circuit, Washington, D.C. She is a 

graduate of U.C. Berkeley School of Law and earned her M.A. in Molecular Biology at U.C.L.A. where she taught 

genetics to biology major undergraduates, and biotechnology and social policy hon¬ors seminar to non-science 

majors. She attended California State University, Northridge, CA where she earned her B.A. in Environmental 

Biology. 

Ms. Boyd is a Mediator in the Northern District of California Alternative Dispute Resolution Mediation Panel, 

and formerly served on the mediation panel for the Court of Appeals for the Federal Circuit. She serves as a 

Director on the Boalt Hall Alumni Association Board of Directors.

Karen I. Boyd

Founding Partner, Turner Boyd LLP, California
Mediator Biography

Page 17

U.S. International Trade Commission

George L. Graff has extensive experience in dispute resolution, licensing and acquisition of intellectual property rights and technology. He has acted as lead counsel in numerous bench trials, jury 

trials, ITC investigations, arbitrations, appeals and dispute resolution 

negotiations involving patents, copyrights, trade secrets, software and 

technology licensing, trademarks and related antitrust and commercial 

issues. He has also advised and represented clients in the negotiation 

of intellectual property and technology licenses and acquisitions in a 

wide variety of fields, including semiconductor design and manufacturing, software development, entertainment, pharmaceuticals and dietary 

supplements, medical and dental devices, telecommunications, fiber 

optics, automotive components, apparel, travel services, internet services, 

and investment banking. 

In addition to the ITC roster of mediators, Mr. Graff serves on the mediation panel for the Federal Circuit Court of Appeals, the National Panel of Neutrals of the American Arbitration 

Association, the Technology Panel of Neutrals and International Patent Commission of the International Institute for Conflict Prevention and Resolution (CPR), the mediation panel of the Bankruptcy Court of the Eastern 

District of New York and the arbitration panel of the United States District Court for the Eastern District of 

New York. He has served as a neutral arbitrator or mediator in numerous cases involving intellectual property, 

licensing and technology related issues. He has participated in numerous mediation and arbitration training 

courses sponsored by CPR , the American Arbitration Association, the Chartered Institute of Arbitrators and the 

United States District Court for the Eastern District of New York. 

Mr. Graff has served as a partner of Paul, Hastings, Janofsky and Walker, LLP and Milgrim Thomajan and Jacobs, PC. He graduated, magna cum laude, from Columbia University School of Law in 1967, where he served as 

an editor of the Columbia Law Review. Following law school, he served for three years as law clerk to Chief Judge 

Stanley H. Fuld of the New York Court of Appeals. Before commencing his legal career, Mr. Graff served on active duty in the United States Navy, where he attained the rank of Lieutenant Commander. 

Mr. Graff represented the American Bar Association as advisor to the drafting committee of the Uniform Computer Information Transactions Act (UCITA), which establishes a nationwide legislative framework for licensing of software and electronic databases. He has also represented the Intellectual Property Owners Association 

(IPO) as an amicus curiae in patent related appeals in the Federal Circuit Court of Appeals and served as vice 

chair of its Amicus Committee. He has also served as a member of the Council of the ABA section on science and 

technology and as chairman of the State Legislation Committee of the Association of the Bar of the City of New 

York. He has been recognized as a leading U.S. intellectual property attorney in several publications, including 

The Legal 500, New York Super Lawyers, and Who’s Who in American Law.

George L. Graff

IP Expert on Wide Range of Technologies, New York
Mediator Biography

Page 18

337 Mediation Program

Prior to joining Jones Day in June 2008, Walt Kelley served as a U.S. 

District Court Judge in the Eastern District of Virginia. He was 

nominated by President Bush in 2003 and unanimously confirmed 

by the United States Senate in 2004. While a judge, Walt presided over 

numerous criminal and civil cases, including the longest jury trial in Eastern District of Virginia history.

Walt was in private practice for 23 years before taking the bench. He 

handled a wide variety of business cases during that time, including 

antitrust, intellectual property, and corporate control disputes. Walt 

was named repeatedly to The Best Lawyers in America in the category of 

business litigation, was voted each year by his peers as one of the “Legal 

Elite” in Virginia Business magazine’s annual survey, and was rated AV by 

Martindale-Hubbell. He has tried more than 25 jury cases to verdict.

While in private practice, Walt was heavily involved in bar association activities. He served as president of the 

Virginia State Bar’s Young Lawyer’s Conference (1988-1989); chair of the Virginia State Bar’s Section of Antitrust, Franchise and Trade Regulation Law (1990-1991); and a delegate to the American Bar Association’s House 

of Delegates. Walt was also elected a master of the James Kent Inn of Court. He is admitted to the State Bar of 

Virginia.

Walt is an alumnus of Washington and Lee University (B.A. cum laude 1977; J.D. magna cum laude 1981; Order 

of the Coif; Omicron Delta Kappa; Lead Articles Editor, Washington and Lee Law Review). He served as a Law 

Clerk to Judge Ellsworth A. Van Graafeiland, U.S. Court of Appeals, Second Circuit.

Walter D. Kelley, Jr.

Former Federal Judge, Washington, DC

| 2010 Mediator Roster and Biographies
Mediator Biography

Page 19

U.S. International Trade Commission

J

udith Meyer is the Founder of JPMeyer Associates’ Commercial Dispute 

Solutions. She mediates and arbitrates complex commercial disputes 

in contract, environment, construction, employment, attorney and 

accounting malpractice, securities, insurance coverage, franchise and bankruptcy. Her mediation expertise in the commercial trade, IT and IP fields spans 

a variety of cases. A representative sampling includes:

• patentinfringement, misappropriation oftrade secrets claims and unfair

business practices and unfair competition claims by the manufacturers of a 

patented design purchased by the U.S. Armed Services;

• a dispute over patentlicense assignments and income sharing;

• the infringement of copyrightregistration and trade dress rights in a commercially distributed food product;

• charges of unfairtrade practices brought by a national franchisees’ association against franchisor; 

• a dispute over patentlicense assignments and income sharing brought by a domestic corporation against a corporation registered in Ireland; and,

• claims of breach ofthe exclusive global distribution rights to software technology, failure to marketthe technology,

and the misappropriation of confidential information.

From 1973 to 1995, Judith was an associate and then a partner in Meserve, Mumper & Hughes, Los Angeles, a partner 

in Lande, Rolston & Meyer, in Beverly Hills, and, of counsel to Bazelon, Less & Feldman in Philadelphia. She worked as 

a civil trial lawyer, representing clients in eminent domain takings; leasing and UCC claims; commercial construction; 

real estate; insurance; commercial lending litigation; and, in appellate matters.

Judith is certified by the International Mediation Institute and chairs the Independent Standards Commission of the 

Institute. She is a Fellow of the Chartered Institute of Arbitrators, a member of the Academy of Court-Appointed Masters, a Distinguished Fellow and Former Board Member of the International Academy of Mediators, and a member of 

the College of Commercial Arbitrators. She is appointed to the mediation and/or arbitration panels of the CPR International Institute for Conflict Prevention and Resolution, the American Arbitration Association, the U.S.-China Business 

Conciliation Center (CCPIT Beijing), FINRA, the EEOC, the American Health Lawyers’ Association, the U.S. Federal 

Circuit Court of Appeals, the U.S. International Trade Commission, the Business and Technology Case Management 

Program for the State Courts of Maryland, and the Superior Courts of New Jersey. She serves as a Judge Pro Tem for 

the Commerce Court of Philadelphia, as Special Master for the Commonwealth Court of Pennsylvania, and as Referee 

in insurance bankruptcy liquidation matters. She appears in Best Lawyers in America, in ADR, 2006 through 2010.

Judith teaches negotiation and mediation at Cornell Law School. She has lectured on negotiation in the University of 

Pennsylvania, Wharton School of Business Executive Education Program. She writes and lectures frequently on ADR.

Judith is admitted to the bars of the U.S. Tax Court and the States of California, Idaho and Pennsylvania. She maintains 

residences in Haverford, Pennsylvania and Ketchum, Idaho.

Judith Meyer, Esquire

Mediator, Special Master, Judge Pro Tem & Professor, Pennsylvania
Mediator Biography

Page 20

337 Mediation Program

Paul Redmond Michel was the chief judge for the United States Court 

of Appeals for the Federal Circuit. He joined the court in 1988 after 

being nominated by President Ronald Reagan. Michel retired from 

the court effective May 31, 2010.

Michel graduated from Williams College with his Bachelor’s degree in 

1963 and later graduated from Virginia Law with his J.D. degree in 1966 

and also served in the U.S. Army Reserve from 1966 to 1972. He was 

ad¬mitted to practice in Pennsylvania in 1967, in U.S. district court in 

1968, in U.S. circuit court and before the U.S. Supreme Court in 1969.

Michel began his career with the Philadelphia District Attorney’s Office as 

Assistant District Attorney and later Deputy District Attorney for Investigations from 1966-1974 before becoming an Assistant Watergate Special 

Prosecutor from 1974 to 1975 before becoming Assistant Counsel for the 

U.S. Senate Intelligence Committee from 1975 to 1976 before becoming Deputy Chief and Lead prosecutor in 

the Koreagate Scandal in the Public Integrity Section of the U.S. Department of Justice from 1976 to 1978 before becoming Associate Deputy U.S. attorney general from 1978 to 1981. Michel became Counsel and Administrative Assistant to Pennsylvania U.S. Senator Arlen Specter from 1981 to 1988. He has taught academically as 

an Adjunct faculty at George Washington Law and at John Marshall Law since 1991.

Michel served as a judge for 22 years on the U.S. Court of Appeals for the Federal Circuit. He served as the chief 

judge of the Federal Circuit from 2004 until his retirement in 2010. As chief judge, Michel created the court’s 

Mediation Program.

He authored Patent Litigation and Strategy LCCN 2003-267792 with fellow Federal Circuit Judge Kimberly Ann 

Moore and patent attorney Raphael Lupo. He has also written several articles on effective advocacy and the 

work of the Federal Circuit.

Paul Michel

Former Chief Judge, Court of Appeals for Federal Circuit, Washington, DC

| 2010 Mediator Roster and Biographies
Mediator Biography

Page 21

U.S. International Trade Commission

From 1957 through 1998, Mr. Plant practiced law in New York City 

with Fish & Neave. For 25 years, and exclusively since January 

1999, he has served as a neutral and a teacher.

Mr. Plant holds degrees in engineering and law from Cornell University. 

He is a member of the bars of New York, the United States Supreme 

Court, various United States courts of appeals and district courts, and the 

United States Patent and Trademark Office.

While at Fish & Neave, Mr. Plant’s practice focused on trials and appeals 

in federal courts, proceedings before the ITC, FTC, and USPTO, and various ADR processes, the majority of which related to patent matters. He 

served as managing partner of Fish & Neave, chair and director of various 

professional committees and organizations, and on various ADR panels in 

both court-annexed and voluntary procedures.

He has served as a Special Master in U.S. district courts, and as a mediator or arbitrator in more than 350 

domestic and international disputes, including ICC, Stockholm, UNCITRAL, AAA, ICDR, CPR, WIPO, courtannexed, and ad hoc mediations and arbitrations, the majority of which have related to patent matters.

He has written and spoken on ADR issues in the U.S., Canada, Europe, Japan, Australia, Africa, and South 

America, and has led courses and workshops in arbitration and mediation at the ICC, WIPO, UNITAR, Cairo 

Regional Centre for International Commercial Arbitration, and bar associations. Among his publications are We 

Must Talk Because We Can, ICC Feb. 2008 (author), Resolving International Intellectual Property Disputes, ICC 

1999 (author), Guide To ADR For IP Disputes, AIPLA 1995 (editor), and various chapters in texts and articles in 

journals.

He is an adjunct professor at Cornell University Law School and University of New Hampshire School of Law, 

and has taught, as a Senior Fellow, at the University of Melbourne Law School in 2002, and as an adjunct professor, at Hong Kong University Law Faculty in January 2009, and at the University of Fribourg, Switzerland in 

December 2009.

He has completed hundreds of hours of basic and advanced training as a neutral.

Mr. Plant is a Fellow of the Chartered Institute of Arbitrators (both Arbitration and Mediation), the American 

College of Civil Trial Mediators, and the College of Commercial Arbitrators (and a Director), as well as a Distinguished Fellow of the International Academy of Mediators, and an accredited CEDR and IMI mediator. He has 

been listed in The Best Lawyers In America, Guide To The World’s Leading Experts & Lawyers In Commercial 

Arbitration, Guide To The World’s Leading Patent Law Experts, and Guide To the World’s Leading Trade Mark 

Law Practitioners. In August 2006, Mr. Plant received the American Bar Association Section of Dispute Resolution’s “Lawyer As Problem Solver Award”.

David William Plant

Mediator, Arbitrator, Special Master, & Professor, New York
Mediator Biography

Page 22

337 Mediation Program

Ms. Samaras founded the ADR & Law Office of Harrie Samaras. She 

mediates and arbitrates complex commercial domestic and international cases focusing on intellectual property, business and technology issues.

Ms. Samaras is a Harvard trained mediator who has received certification 

from the International Mediation Institute. She is a Fellow of the Chartered Institute of Arbitrators. Her training in includes programs administered by the American Arbitration Association (AAA) and the Chartered 

Institute of Arbitrators. Ms. Samaras serves as a Neutral on an ad hoc basis 

and for such widely respected domestic and international ADR organizations as: the CPR International Institute for Conflict Prevention and Resolution, AAA, the World Intellectual Property Organization (WIPO), the U.S. 

Council for International Business and the Financial Industry Regulatory 

Authority, Inc. (FINRA).

During the past twenty-five years, Ms. Samaras has worked as an attorney in the corporate and private sectors, 

for the U.S. government as a staff attorney and law clerk at the U.S. Court of Appeals for the Federal Circuit, and 

as a Patent Examiner at the U.S. Patent and Trademark Office in the biomedical arts. In private practice, Ms. 

Samaras represented clients at the trial and appellate levels in IP litigation and mediations. She has served as 

Director of Intellectual Property Litigation for a Fortune 500 telecommunications company and as Vice President 

Intellectual Property, Legal, for a business unit of a multi-national pharmaceutical company.

Serving as a neutral and representing clients, Ms. Samaras has handled disputes involving mechanical, chemical 

and software IP with an emphasis in medical devices, pharmaceuticals and biotechnology.

Ms. Samaras chairs the Subcommittee on neutrals for CPR’s International Commission on Patent Disputes and 

she serves on various advisory committees for the AAA, ABA and the Center for Resolution (Media, PA). Ms. 

Samaras has chaired ADR committees for the American Intellectual Property Law Association, the ABA and the 

Federal Circuit Bar Association.

She is a frequent speaker on ADR topics for national and local bar associations and other legal organizations. She 

has lectured to law, business and graduate students on the subject of ADR. Ms. Samaras holds a B.S. and an M.S. 

degree in the life sciences, a J.D. degree, and an LL.M. degree in Patent and Trade Regulation Law.

Harrie Samaras

Founder, ADR & Law Office of Harrie Samaras, Pennsylvania

| 2010 Mediator Roster and Biographies
Mediator Biography

Page 23

U.S. International Trade Commission

George H. Spencer is an attorney who focuses his practice on all aspects of intellectual and industrial property law, including Alternative Dispute Resolution. 

Mr. Spencer received his Bachelor of Engineering degree from Yale 

University and his Juris Doctor degree from Cornell University. He has 

served as a Patent Examiner in the United States Patent and Trademark 

Office and was thereafter associated with Toulmin & Toulmin, a longestablished patent law firm which had obtained the early patents for the 

Wright Brothers. Mr. Spencer then established his own practice in Washington, D. C., and shortly thereafter became the senior founding partner 

of Spencer & Kaye, later Spencer & Frank, which, as a firm of twenty 

attorneys specializing exclusively in intellectual and industrial property 

law, had obtained well over ten thousand patents and over a thousand 

trademark registrations, combined in 1998 with the general law firm of 

Venable LLP, on whose Management Board Mr. Spencer served. 

Mr. Spencer’s experience covers the entire range of patent and trademark prosecution, patent, trademark and 

copyright enforcement, unfair competition, licensing and negotiations in the field of intellectual and industrial 

property, and litigation in the courts and before government agencies, including the International Trade Commission which has the authority to prevent the importation of products that infringe a U.S. patent or were made 

outside of the United States by a process covered by a U.S. patent. 

He is fluent in German and French and has extensive experience in representing domestic as well as foreign clients, principally European ones, in the United States. Mr. Spencer has lectured extensively at home and abroad 

and has served as an arbitrator while on the Panel of Arbitrators of the American Arbitration Association. He 

is on the Panel of Arbitrators and Mediators of the Arbitration and Mediation Center of the World Intellectual 

Property Organization (WIPO), a Geneva, Switzerland, based agency of the United Nations, and he has also 

served as a judge in numerous moot court competitions administered by law schools and by federally sponsored 

organizations. Mr. Spencer is a Master of the Bench of the Prettyman-Leventhal American Inn of Court, whose 

focus is administrative law. 

Earlier, Mr. Spencer served in the U. S. Army Reserve. He saw active duty in the Signal Corps and served as Captain in the Army’s Judge Advocate General Corps, including a tour of duty in the JAGC Patents Division in the 

Pentagon. 

Mr. Spencer is admitted to the bars of the District of Columbia, the State of New York, the United States Supreme Court and various Federal District Courts and Courts of Appeal, including the Court of Appeals for

the Federal Circuit which is the appellate court that hears appeals in patent related matters. He is registered

to practice before the United States Patent and Trademark Office and the Canadian Intellectual Property

Institute and is a member of numerous domestic and international bar associations, including the Lawyer-Pilot 

Bar Association.

George H. Spencer, Esquire

Founding Partner, Spencer & Frank, Washington, DC
Page 24

337 Mediation Program | 2010 Mediator Roster and Biographies
Page 25

U.S. International Trade Commission

Mediation Program Forms

The 337 Mediation Program is protected under a standing Commission Order. Prior to allowing participation in the confidential mediation process, the Commission requires all parties, mediators, and other actively involved program participants to sign, agree to, and be bound by non-disclosure agreements 

executed under the current Commission Order. Mediation forms for each step of the process include:

•	 Certification of Receipt and Reading/Discussion of Mediation Materials: documents the 

receipt and reading of mediation materials.

•	 Confidential Request to Enter Mediation: used to nominate section 337 investigations for 

mediation.

•	 Non-Disclosure Confidentiality Agreement for Parties, or Employees or Inside Counsel:

outlines terms of the mediation process and provides the consent to said terms of all activelyinvolved program participants.

•	 Non-Disclosure Confidentiality Agreement for Parties and Authorized Representatives 

of Parties: outlines terms of the mediation process and provides the consent to said terms of each 

party’s authorized representatives.

•	 Non-Disclosure Confidentiality Agreement for Mediators: provides terms of the mediation 

process and mediator’s consent to said terms.

•	 Confidential Evaluation of Mediation: requests background information from potential 

mediators for the Commission’s pre-screening process.

If we reveal settlement proposals to our opponents during mediation and a settlement does not result for any reason, are we stuck with those proposals for future 

attempts to settle the case?

Mediation is a confidential, facilitated negotiation and a negotiation is always nonbinding until there is a 

signed agreement. Any party can leave mediation if it feels another party is negotiating in bad faith, or a 

complainant may disengage from mediation with one or more respondents and continue mediating with 

the others. All of the parties and the mediator must sign non-disclosure agreements that place them under the Commission’s standing protective order for the Mediation Program. This bars disclosure of settlement or mediation proposals. Therefore, the parties are not bound in any way by mediation discussions 

for the purposes of the underlying Section 337 investigation.
Page 26

337 Mediation Program

Sample

1

U.S. International Trade Commission 

Certification of Receipt and Reading/Discussion of Mediation Materials 

Pursuant to the Commission’s Users’ Manual for the Commission Mediation Program for 

Section 337 Investigations, a certification of receipt and reading/discussion of materials 

shall be filled out and returned to the Supervisory Attorney for Docket Services as below: 

James R. Holbein 

Supervisory Attorney, Docket Services 

U.S. International Trade Commission 

500 E Street SW, Room 112 

 Washington, DC 20436 

If a party is represented by counsel, the certification may be filled out by counsel as 

follows: 

I, _______________________ as the lead counsel for ________________________ , a 

complainant or respondent in an investigation under section 337 of the Tariff Act of 1930 

before the U.S. International Trade Commission, hereby attest that I have received the 

materials sent by the Commission upon the filing of a complaint by the complainant 

regarding the Commission’s mediation program and discussed them with the party under 

my representation. 

or

If a party is not represented by counsel, the certification may be filled out by a 

representative of the party (i.e., a business principal) as follows: 

I, _______________________, a representative of ____________________________, a 

complainant or respondent in an investigation under section 337 of the Tariff Act of 1930 

before the U.S. International Trade Commission, hereby attest that I have received and 

read the materials sent by the Commission upon the filing of a complaint by the 

complainant regarding the Commission’s mediation program. 

| Mediation Program Forms
Page 27

U.S. International Trade Commission

Sample

CONFIDENTIAL REQUEST TO ENTER MEDIATION

Return to:

James R. Holbein

Supervisory Attorney, Docket Services

U.S. International Trade Commission

500 E Street SW, Room 112

Washington, D.C. 20436

The parties listed below request that:

Inv. No. 337-TA-_________

Certain ____________________________________________________________

__________________________________________________________________

be included in the U.S. International Trade Commission’s mediation program for

section 337 investigations (indicate name of party and counsel)

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Multiple parties nominating an investigation may do so jointly or separately. Additional pages

may be attached if necessary.
Page 28

337 Mediation Program

Sample

UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

NON-DISCLOSURE CONFIDENTIALITY AGREEMENT 

FOR PARTIES, OR EMPLOYEES OR INSIDE COUNSEL THEREOF

--To be signed by each party, or employee or inside counsel thereof,

that participates in the mediation process--

I, ______________________________, a party, or employee or inside counsel thereof in

Inv. No. ____________, intending to be legally bound, hereby consent to the terms in this

Agreement in consideration of me being granted conditional access to certain information,

including all communications (written or oral) provided by the U.S. International Trade

Commission (“Commission”) and the private parties to this investigation under section 337 of

the Tariff Act of 1930, 19 U.S.C. § 1337, including all confidential business information and all

information provided in the mediation. 

1. I will not disclose communications made by other private parties in a joint

session, unless otherwise required by law. 

2. All forms of communication (written and oral) are to be protected.

3. Communications of information that is otherwise public may be disclosed.

4. I will not make a verbatim recording of the mediation such as an audio tape or

a stenographic record.

5. I and any entity that I may represent in Inv. No. ________ agree to hold the mediator

harmless from any and all claims or actions associated herewith.

6. Although the Commission investigative attorney is a full party to the investigation, the

Commission investigative attorney will not have knowledge of the contents of the

mediation proceedings, except that the Commission investigative attorney may review

any settlement agreement that arises from a successful mediation in making a

recommendation to the presiding administrative law judge about whether a settlement is

in the public interest.

7. I agree to comply with the provisions of 5 U.S.C. § 574, the Federal Rules of

| Mediation Program Forms
Page 29

U.S. International Trade Commission

Sample

Evidence, the Administrative Procedure Act, 19 U.S.C. § 1337(n), and other applicable

laws, as well as the terms of this agreement.

8. If I am served with a subpoena or other demand, I shall promptly advise the General

Counsel of the Commission of the service of the subpoena or demand, the nature of the

documents or information sought, and all relevant facts or circumstances. I am aware that

mediation communications and confidential business information are subject to the

assertion of privilege as set forth in this document and in applicable laws. The Chairman

of the Commission may assert privilege for the information described herein. The

General Counsel will defend the assertion of privilege on behalf of the mediator and the

Commission. If a court rules that a demand made upon me must be complied with, I shall

respectfully ask the court to wait for the General Counsel to submit an explanation to the

court of the nature of the privilege being asserted. 

 

____________________________ ___________________________________ _______

Signed Title Date
Page 30

337 Mediation Program

Sample

UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

NON-DISCLOSURE CONFIDENTIALITY AGREEMENT 

FOR AUTHORIZED REPRESENTATIVES OF PARTIES

(OUTSIDE COUNSEL)

--To be signed by each authorized representative of a party (outside counsel)

that participates in the mediation process--

I, ______________________________, an authorized representative of a party (outside

counsel) in Inv. No. __________, intending to be legally bound, hereby consent to the terms in

this Agreement in consideration of me being granted conditional access to certain information,

including all communications (written or oral) provided by the U.S. International Trade

Commission (“Commission”) and the private parties to this investigation under section 337 of

the Tariff Act of 1930, 19 U.S.C. § 1337, including all confidential business information and all

information provided in the mediation. 

1. I will not disclose communications made by other private parties in a joint

session, unless otherwise required by law. 

2. All forms of communication (written and oral) are to be protected.

3. Communications of information that is otherwise public may be disclosed.

4. I will not make a verbatim recording of the mediation such as an audio tape or

a stenographic record.

5. I, my firm, and any client that I represent in Inv. No. ______ agree to hold the

mediator harmless from any and all claims or actions associated herewith.

6. Although the Commission investigative attorney is a full party to the investigation, the

Commission investigative attorney will not have knowledge of the contents of the

mediation proceedings, except that the Commission investigative attorney may review

any settlement agreement that arises from a successful mediation in making a

recommendation to the presiding administrative law judge about whether a settlement is

in the public interest.

| Mediation Program Forms
Page 31

U.S. International Trade Commission

Sample

7. I agree to comply with the provisions of 5 U.S.C. § 574, the Federal Rules of

Evidence, the Administrative Procedure Act, 19 U.S.C. § 1337(n), and other applicable

laws, as well as the terms of this agreement. Outside counsel who have subscribed to the

protective order of the presiding administrative law judge will comply with any obligation

thereunder not to share confidential business information with parties under

representation, with executives or employees of parties under representation, or with

counsel who are not under the protective order of the presiding administrative law judge.

8. If I am served with a subpoena or other demand, I shall promptly advise the General

Counsel of the Commission of the service of the subpoena or demand, the nature of the

documents or information sought, and all relevant facts or circumstances. I am aware that

mediation communications and confidential business information are subject to the

assertion of privilege as set forth in this document and in applicable laws. The Chairman

of the Commission may assert privilege for the information described herein. The

General Counsel will defend the assertion of privilege on behalf of the mediator and the

Commission. If a court rules that a demand made upon me must be complied with, I shall

respectfully ask the court to wait for the General Counsel to submit an explanation to the

court of the nature of the privilege being asserted. 

 

____________________________ ___________________________________ _______

Signed Title Date
Page 32

337 Mediation Program

Sample

UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

NON-DISCLOSURE CONFIDENTIALITY AGREEMENT FOR MEDIATORS

--To be signed by the mediator--

I, ______________________________, a mediator, intending to be legally bound, hereby

consent to the terms in this Agreement in consideration of my being granted conditional access to

certain information, as specified below:

1. This information includes all communications (written or oral) provided by the

U.S. International Trade Commission (“Commission”) and the private parties to

this investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337,

including all confidential business information and all information provided in the

mediation. The mediation is confidential and is protected by the confidentiality

provisions of the Alternative Dispute Resolution Act, 5 U.S.C. § 574. A dispute

resolution communication between a mediator and a party that is protected from

disclosure under 5 U.S.C. § 574 is also protected from disclosure under FOIA (5

U.S.C. § 552(b)(3)), as provided by 5 U.S.C. § 574. The parties’ communications

are also protected by other applicable authorities, including the Federal Rules of

Evidence, the Administrative Procedure Act, and 19 U.S.C. § 1337(n). By my

being granted conditional access to the information indicated above, the

Commission has placed special confidence and trust in me and I am obligated to

protect this information from unauthorized disclosure, in accordance with the

terms of this Agreement and the laws, regulations, and directives applicable to the

specific categories of information to which I am granted access.

2. This agreement is made and intended for the benefit of the Commission and may be

enforced by the Commission. By granting me conditional access to information in this

context, the Commission, or any authorized representative, may seek any remedy

available to it to enforce this Agreement including, but not limited to, application for a

court order prohibiting disclosure of information in breach of this Agreement. I

understand that if I violate the terms and conditions of this Agreement, I could be

subjected to administrative, disciplinary, civil, or criminal action, as appropriate, under

the laws, regulations, or directives applicable to the category of information involved and

the Commission has not waived any statutory or common law evidentiary privileges or

protections that it may assert in any administrative or court proceeding to protect any

sensitive information to which I have been given conditional access under the terms of

this Agreement.

3. All forms of communication (written and oral) are to be protected.

| Mediation Program Forms
Page 33

U.S. International Trade Commission

Sample

2

4. Communications made by the private parties in joint session may not be

disclosed to anyone not participating in the session.

5. Communications of information that is otherwise public may be disclosed.

6. If I am served with a subpoena or other demand, I shall promptly advise the

General Counsel of the Commission of the service of the subpoena or demand, the

nature of the documents or information sought, and all relevant facts or

circumstances. The Chairman of the Commission may assert privilege for the

information described herein. See Touhy v. Ragen, 340 U.S. 462 (1951). If the

Chairman asserts privilege over the information, I shall respectfully decline to

produce the requested documents, to testify, or to otherwise disclose requested

information. The General Counsel will defend the assertion of privilege on behalf

of the mediator and the Commission. If a court rules that a demand made upon

me must be complied with, I shall respectfully ask the court to wait for the

General Counsel to submit an explanation to the court of the nature of the

privilege being asserted. 

7. I will make no verbatim recording of the mediation such as an audio tape or a

stenographic record.

8. Although the Commission investigative attorney is a full party to the investigation, the

Commission investigative attorney will not have knowledge of the contents of the

mediation proceedings, except that the Commission investigative attorney may review

any settlement agreement that arises from a successful mediation in making a

recommendation to the presiding administrative law judge about whether a settlement is

in the public interest.

9. As described in the Users’ Manual, the Commission may communicate with the

Supervisory Attorney for Docket Services and with mediators with a view towards

revising the pilot mediation program. The Supervisory Attorney for Docket Services or

the mediator may also communicate with an administrative law judge regarding a motion

for sanctions, only to the extent necessary to make a recommendation on sanctions. In

both situations, the substance of the communications remains confidential.
Page 34

337 Mediation Program

Sample

3

10. In addition to the above terms regarding confidentiality of communications made

during a mediation, I will not disclose any confidential business information to any

person not covered by a protective order. A protective order covers those counsel who

have been subscribed to a protective order by the administrative law judge or the

Commission, but does not cover parties under representation, does not cover executives

or employees of parties under representation, and does not cover those counsel who are

employed directly by the party (inside counsel). 

____________________________ ___________________________________ _______

Signed Mediator Date

____________________________ ___________________________________ _______

Signed James R. Holbein Date

 Supervisory Attorney for Docket Services

 

| Mediation Program Forms
Page 35

U.S. International Trade Commission

Sample

CONFIDENTIAL EVALUATION OF MEDIATION FORM

Return to:

James R. Holbein

Supervisory Attorney, Docket Services

U.S. International Trade Commission

500 E Street SW, Room 112

Washington, D.C. 20436

Please attach additional pages if you require additional space.

1. Please indicate the name and number of the investigation involved in the

mediation.

2. Please indicate your name and the party you represent.

3. Did your client attend any of the mediation sessions? Yes/No_(circle one)____

4. Did the mediator have expertise in the legal issues involved in the case? Yes/No

5. What impact did the mediator’s expertise have on the mediation?

6. Please provide a candid evaluation of the mediator assigned to this investigation.

7. At what point in the investigation did the mediation occur?

8. How many hours of attorney and party time were spent in mediation? How much

money?
Page 36

337 Mediation Program

Sample

9. How many hours of attorney and party time were saved by mediation? How much

money?

10. Was the mediation useful in identifying settlement options? In helping the parties

to evaluate their case? To communicate with each other?

11. Did the mediation result in a settlement? A narrowing of the issues? A clarification

of the issues? A decrease in the level of conflict?

12. Do you consider the mediation to have been successful? Yes/No

Why?

13. Were you satisfied with the outcome of the mediation process?

13. What suggestions do you have for improving the program?

14. Would you recommend the mediation process to other litigants?

2

| Mediation Program Forms

500 E Street, SW

Washington, DC 20436