Intellectual property assets are central components of the contemporary knowledge economy. Therefore, it is essential that they be managed efficiently and in order to do so, the option of dispute resolution must be clearly spelled out.
Although an intellectual property dispute can be resolved through court litigation, mediation, arbitration or other alternative dispute resolution ("ADR") procedures is frequently resorted to as ADR is appropriate for most intellectual property disputes.
Mediation, specifically, is an attractive option for parties that place a premium on the preservation or enhancement of their relationship, seek to maintain control over the dispute settlement process, value confidentiality, or want to reach a speedy settlement without damage to their reputations.
WHAT IS MEDIATION?
In a mediation procedure, a neutral intermediary, the mediator, helps the parties to discuss the problem and reach a mutually satisfactory settlement of their dispute. Mediation is an efficient and cost-effective way of achieving result while preserving, and at times even enhancing, the relationship of the parties.
The principal characteristics of mediation are:
Mediation is a nonbinding procedure controlled by the parties
A party to a mediation cannot be forced to accept an outcome that it does not like. A mediator is not a decision-maker. His role is, rather, to assist the parties in reaching a settlement of the dispute. The parties can also decide on how the mediation should be conducted with the mediator. They are also free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests.
Mediation is a confidential procedure
In a mediation, the parties can keep information confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information, that information cannot, be provided to anyone, including in subsequent court litigation or arbitration, outside the context of the mediation. Mediation’s confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
Mediation is an interest based procedure
In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In a mediation, the parties can also be guided by their business interests. Parties refer to their interests and engage in dialogue and choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. Even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, preparing the ground for subsequent arbitration or court proceedings.
PRINCIPAL STEPS IN A MEDIATION1
Commencement Request for Mediation
Appointment of the Mediator
Initial Contacts between the Mediator and the Parties
Set up the first meeting
Agree on preliminary exchange of documents, if any
First and Subsequent Meetings
Agree on ground rules of the process
Gather information and identify issues
Explore the interests of the parties
Develop options for settlement
Parties to contracts involving the exploitation of intellectual property often wish for a speedy resolution when a dispute arises. Common examples of such contracts include patent, know how and trademark licenses, research and development contracts, technology-sensitive employment contracts, mergers and acquisitions where intellectual property assets assume importance and technology transfer contracts.
Types of IP disputes that may be considered suitable for settlement by mediation include:
Disputes about the licensing of IP rights;
Disputes concerning the infringement of IP rights;
Trade mark opposition and invalidation proceedings on relative grounds;
Disputes over patent entitlement, e.g. whether co-inventor was employee or consultant;
Disputes over patent/trade mark ownership, e.g. whether employee developed invention
in their own or Company time; or
Disputes over patent inventorship, e.g. the significant contribution made by a third party.
Mediation through potential mediators with specific expertise in relevant technology can help transform a potential prolonged litigation involving dreadful costs and money into an arrangement suiting both parties’ business interests.
1 WIPO Arbitration and Mediation Center, Dispute Resolution of the 21st Century; <
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