Earlier this week, Apple's CEO Tim Cook and Samsung's CEO Choi Gee–Sung met in San Francisco to explore ways to settle their differences. US Magistrate Judge Jospeh Spero presided over the high stakes 2-day court-directed IP mediation.

The tech giants, who are embroiled in a global patent war involving some 20 cases in 10 different countries, agreed to put their differences aside and talk. Whilst their intentions may have been genuine, The Korea Times reported yesterday that the two companies failed to reach an agreement. The US case, which is set for a jury trial at the end of July in San Jose, California, stemmed from Apple's allegations that Samsung "slavishly" copied some of its products, namely the iPhone and iPad. Samsung refute the allegations and have countersued claiming that Apple infringed its patents.

The companies have a complex relationship. Whilst Samsung's smartphones and tablet computers run on Google's Android operating system and compete with Apple's products, Samsung is a key components supplier to Apple, which generates revenue in the region of $1bn per year for Samsung. Samsung has a 30.6% share of the global smartphones market having sold 44.5 million handsets in the first quarter of this year. Apple sold 35.1 million iPhones, giving it a 24.1% share. If the rivals can't reach a compromise, the victor of the legal contest could secure crucial advantages in the marketplace.

Courts across the US and elsewhere are increasingly encouraging parties to consider mediation as a means of resolving commercial disputes. In a similar move last week, a judge in Delaware ordered Apple and HTC, who are also feuding, to meet on 28 August 2012 to try and resolve their ongoing patent dispute. Apple is believed to have spent around $100m on the dispute thus far.

Historically, the Scottish courts have adopted a more hands-off approach to mediation, but it is increasingly gaining momentum. Many parties have found mediation to be a highly effective way to resolve disputes of all shapes and sizes and as a result its popularity is on the rise.

Timing can play a key part in the success of mediation. As the Apple v Samsung case has demonstrated, mediation can still take place even after court proceedings have been commenced. The virtues of mediation are often not appreciated until after a few litigious blows have been dealt. One of the many perks of mediation is that it allows the parties to tailor their own solution. For the time being, though, it seems the smartphone heavyweights are content to roll the digital dice and take their chances with a jury.

© MacRoberts 2012

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