For mediators, the job is an exercise in rescue, to rescue people from the courts and sometimes from themselves. The job of the mediator is to move the party from insisting on its ‘position’ to focussing on its ‘interest’.
The mediator does not pass judgment but facilitates agreement arrived at between the parties. It is impossible to predict what that agreement may be. In trade mark disputes it is often a co-existence agreement, a rebranding or sale. In patent disputes it could be a licence. But it is a dangerous presumption to make that such outcomes are inevitable in any given dispute.
It can be hard where the levels of trust are non-existent. The parties can be entrenched and sometimes the amounts spent on legal fees are colossal. The parties must willingly arrive at their own agreement.
Here to stay
Mediation is here to stay though. The courts encourage it, especially where the costs incurred by the parties are disproportionate to the claims being made. Such is the case with many IP disputes. Intellectual Property Enterprise Court (IPEC) rules contain cost capping. This gives further incentive to mediated solutions as an alternative to gambling cash away with little or no hope of recovery.
The IPO has 5 accredited mediators. The service was revamped in April 2013 and since then has mediated 12 disputes involving IPO, IPEC and High Court actions. 8 of these have settled on the day or just afterwards.
Further incentive to mediate is that the outcome of many IP disputes is hard to predict. Judges and hearing officers are required to adopt legal constructs such as the ‘average consumer’, the ‘person skilled in the art’, or the ‘informed user’.
Such people do not exist, save in the mind of the judge. This can render outcomes less dependent upon fact and more dependent on a judge’s sense of what may be the most just outcome.
Most importantly, the ‘solutions’ offered by the court are not necessarily what the parties really want. Often the first words spoken by every single party at a mediation, even with their legal advisers present, are something like, “Look, I just want this to go away”.
In many cases the parties just want to get on with their businesses.
This is why mediation can be so rewarding in that the control is handed back to the parties. But it also can be frustrating at times and involve commitment above and beyond the call of duty. Tales of sessions lasting well into the early hours are rife in the profession and even amongst colleagues. Another advantage of mediation over the Court is that no dirty washing is aired in public. Everything is confidential and without prejudice as far as the court is concerned.
The biggest obstacle though to mediated settlement is that, simply, the wrong people are at the mediation. The mediator insists that those present have the authority to settle but it can become clear that this is not always the case. When this happens the mediation will often fail.
Ending on a positive note though, there is no better feeling for a mediator that when the parties sign a settlement agreement.
Visit intellectual property mediation for further details of the IPO's mediation service.