The Mediation Directive (Art. 3a) defines mediation as a structured process whereby two or more parties to a dispute attempt, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. There is no doubt that mediation is in many ways more effective than the classic litigation. This difference goes beyond just the confidential character of proceedings.
by Thomas Gergen
Let us have a closer look on mediation of intellectual property disputes, i.e. disputes regarding industrial property and copyright and related rights. What are the opportunities mediation bears in comparison to classic conflict resolution mechanisms in the case of patent, utility model, design, trade mark, employee inventions or copyright related disputes? But also, what are potential risks of choosing mediation?
Pro mediatione - mediation in business practice
Supporting mediation is the fact that multiple lawsuits can be confidentially dealt with in one single proceeding. Mediation in its classic variant of Alternative Dispute Resolution (ADR) shall thus be considered as more cost effective than a conventional lawsuit. Furthermore, the prevalent use of internet makes the Online Dispute Resolution (ODR)2 especially attractive for stakeholders to the dispute. A wisely implemented mediation may bring positive effects inasmuch as the parties agree that no extensive information shall be requested and that already existing and valuable illegal goods shall not be destroyed, as in case of a classic destruction claim. A request for financial compensation for the unauthorized use of a trade mark, or even an agreement on market segmentation, can be good examples of reasonable solutions in such cases.
To sum up, mediation offers significant opportunities and possible advantages when compared to classic litigation. It can be usually concluded faster, with lower cost and it leads to mutual satisfactory results. Parties choose a mediator by themselves; they have full control of the procedures and the mediation outcome. The mediation process can have a confidential character and is especially convenient for settlement of long-lasting, cross-border and complex conflicts. In addition, it helps avoid incalculable litigation risks, it has a high success rate, and consequently, it leads to a high level of satisfaction of the involved parties.
Risks and adverse effects
Occasionally, it might happen that the mediation mechanism is misused by one party for the purpose as a sort of “delaying” tactic. Furthermore, mediation has a limited field of application – it can only be chosen with respect to comparable subject-matter. It has, for example, no application to precedents. It should not be used with the purpose of reaching convictions with strong public outreach effects nor in order to obtain interim relief either. Further risks of mediation are associated with the fact that its results do not always correspond to the party’s original expectations.
Conclusion: Mediation - more flexibility, more options
Mediation leaves room for manoeuvre. While choosing this form of dispute resolution, the innovation potential of a company can be effectively used. It triggers an increased commercial creativity, and consequently, a new quality in business relations which can be developed in a sustainable manner and with an eye to the future. In mediation parties do not risk their reputation in case of failure as it may happen in case of court judgments. The latter creates, furthermore, a winner-looser relation between the parties which practically excludes the opportunity to cooperate in the future.
If mediation parties find a solution to all the relevant conflicting matters on their own under the guidance of one or more mediators, mediation brings cost advantages, it is time-saving, it takes account of the autonomy and independence of the involved parties, and it gives an opportunity to permanently settle a dispute with the opportunity to continue business partnership.
Mediation works well not only in a cross-border environment but it also plays an important role in national legal disputes. In cross-border disputes which, due to their nature, require a complex translation process, a mediator is additionally expected to play the role of translator.3
About the author
Thomas Gergen is professor at the eufom University in Luxembourg and a Board Member of EIKV (European Institute for Knowledge and Value Management, Luxembourg).
Thomas Gergen. Mediation und Translation im Recht des Geistigen Eigentums, Nomos: Baden-Baden 2015, ISBN 978-3-8487-2330-0.