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The frustration is exacerbated by the nature of the claim itself, one party has alleged another has stolen valuable secret information. This leads to immediate distrust and anger between the parties. In mediation, the alleged victim must now negotiate with the accused thief, adding insult to injury. The defendant, on the other hand, is often offended by being accused of a theft, and the defendant commonly claims the litigation is merely a fishing expedition by the plaintiff to uncover the defendant’s own trade secrets. These allegations alone make trade secret cases more difficult than other cases to settle. In addition, it is very difficult to arrive at a value of the alleged secrets, which by the very nature of the property is not known and certainly not for sale.
When trade secret disputes are as complex and technical as patent disputes, a mediator with experience in technical matters can assist the parties in reaching common ground without undue delay and frustration of trying to teach the mediator complex material.
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