Mediation

Most IP agreements such as licences, require alternative dispute resolution (ADR) as a first step to resolve conflicts that arise between the parties.  An effective choice is often mediation.  Increasingly, the effectiveness of mediation is being recognised by the courts and in some areas mediation before initiating court action, is becoming mandatory, particularly for lower value disputes.

Lord Justice Birss (a former UK patents judge) in December 2023, in  Churchill v Merthyr Tydfil County Borough Council [2023] EWCA CIv 1416, in the UK Court of Appeal, even went as far as to find, alongside his two fellow Justices,  that it is not necessarily a violation of a party’s right to access to justice (and therefore Art. 6 ECHR) if a stay in proceedings is ordered to allow for a “non-court based dispute resolution process” even if the party did not wish to participate in such a process, if the circumstances were right.

The Court also noted that this approach was supported by the (UK) Civil Justice Council’s June 2021 Report on Compulsory ADR which expressed the view that “any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights” .

In recent years, the UKIPO has started offering in-house mediation via the UKIPO Mediation Service.

Many other territories are following a similar path of using mediation to provide effective dispute resolution before resorting to court action.

Why Mediation?

As the UKIPO says, mediation seeks to resolve intellectual property (IP) disputes without the need to go to court. The mediator’s role is not to make a decision on the dispute, but to help both parties reach an amicable solution.  Once a solution is agreed, a binding legal agreement may then be signed.

Mediation is, fast, relatively low cost, effective, flexible, confidential, and voluntary.

Fast and Low Cost
Mediations can sometimes be set up in a matter of days, and are typically orders of magnitude cheaper than a court case.

Effective
Most mediations (approximately 90%) result in settlement of the dispute. In their 2023 audit, CEDR found that the total settlement rate was 92%, with 72% settling on the day, and 20% settling shortly afterwards.

Flexible
A mediation agreement is not bound by the reliefs available to be awarded by a court. The parties can design a flexible settlement that matches their needs.

Confidential
The fundamental principle of mediation, and also its primary advantage, is that it is a confidential process. Confidential that it is taking place, confidential in what is said and done in the mediation and confidential in its outcome. Unless the parties agree otherwise.

This gives the parties the confidence that whatever is said and done, and whatever unsuccessful offers are made to settle, none of it can be shared outside the mediation group unless agreed. Of course, when a deal is done, others may need to be informed so that the necessary payments and/or actions can be taken, but the overriding principle is that it is a confidential process; so if the mediation does not settle, whatever is said and done in the mediation cannot be repeated in court.

Voluntary
In order for mediation to work it is important that all parties agree to take part. Although the process is directed and facilitated by the mediator it is the parties who control the outcome and any agreement.  A party may withdraw at any time.