Why mediate ?
Most Intellectual Property (IP) disputes occur between parties who already have a history together. Very often, IP disputes involve parties who are (or were) partners, members of joint ventures, licensor and licensee, etc.
Destroying them through litigation or arbitration could lead to even more expenses and time spent researching for a new partner. Therefore, despite the apparent bitterness that can exist between them, parties involved in IP disputes are usually more incline to work on their issues. In this respect, mediation can help reestablishing the lost trust, and preserving ongoing relationships.
Every time a lawsuit is filed, it becomes public record. The confidentiality of mediation sessions is therefore fundamental in IP disputes. At the core of these disputes is the existence of information parties are trying to protect from the public and their competitors. If successful, nothing will ever be filed and the information will remain confidential.
When assisting parties in framing their issues, a mediator is providing them with an opportunity to narrow down the perimeter of discovery to what is really related to their dispute. Also, because a mediator facilitates the exchange of relevant information and positions between them, the parties remain actively engaged during the entire resolution process.
The flexibility provided by mediation is unparalleled. Free to mediate or not, parties are also provided with the greatest amount of control over the resolution process of their dispute. They can control the length, the form, and the place of a mediation session. They also remain in charge of the information to be considered, and the selection of the mediator himself. Furthermore, unlike an arbitrator or a judge, a mediator does not render a decision. His role is to facilitate a constructive and honest negotiation between the parties.
Not bound to specific national jurisdiction
Unlike litigation, which has to be resolved within the confines of governing laws and legal procedures, mediation suffers from no such limitations. When opting for mediation, parties are able to shield themselves from specific risks like the unfamiliarity of national courts with foreign laws, long and costly court proceedings, unpredictable or inconsistent court decisions, as well as potential enforceability problems. By using mediation as a unique forum to resolve what could be a multi-jurisdictional IP litigation, parties are able to save a great amount of time. And, most importantly, mediation fosters the finding of a single and global solution tailored to the parties’ needs.
Parties select the mediator(s)
It allows parties to save time by not having to educate judges and jurors who may have little to no knowledge of their specific industry. While only one mediator is usually selected, it is not uncommon for parties entrenched in technical IP disputes to opt for a co-mediation setting.
Once the technicalities of a dispute are unveiled, mediators can assist the parties in examining the economic aspects of their relationships. This analysis may, in turn, allow them to elaborate new business strategies.