Mediation is broadly (though not widely) understood in the world of family law.
At Northwest Mediation we’ve been carrying out civil mediation since we were founded because mediation techniques can be applied to every aspect of any dispute.
This week saw the World Intellectual Property Organization Arbitration (WIPO) and Mediation Center releasing its updated guide on how to use ADR processes to resolve disputes without the involvement of courts, the claim the guide makes, and we don’t doubt it given the numbers we deal with, is that the previous version of the guide has helped solve tens of thousands of disputes.
It’s not a short read running to over 80 pages but the work by Joyce Tan from Singapore funded by the Korean Intellectual Property Office is well worth a read
It also serves as a reminder that mediation isn’t a new concept right back in the 1980s the 1976 Pound Conference allowed governments to begin to use ADR to resolve cross boundary disputes.
At that time Intellectual Property (IP) was not one of the key areas using ADR, however with the boom in IP becoming part of everyday business it became necessary for those businesses to resolve disputes without the expense and delay of the court system so in 1994 WIPO created the WIPO Arbitration and Mediation Center (AMC).
Since then WIPO has settled over 40,000 cases just in domain name disputes let alone other IP areas.
The guide goes on to list the advantages of ADR and we make no apology for restating them here.
“Party Autonomy” the process of mediation is as wide and varied as the parties, there is no rigid legal system which must be followed allowing what is a fluid property right to be explored in appropriate and inventive ways whilst leaving the parties in full control of the process.
To quote the guide “Parties can agree to meet at a neutral location, submit to a neutral expert of their choosing, and abide by rules and procedures that they have modified to meet their needs,”.
“Single Process; Jurisdictional Neutrality” – another of the great benefits of ADR/mediation is to bring the parties into agreement on the system they will use to resolve their conflict, without having lengthy court hearings on which court can hear and avoiding any prejudice, perceived or real, that any one system of laws might have to tone or the other party.
“Independent Specialized Expertise” – the parties agree who will deal with them, they have the opportunity to speak with the mediator and agree that the experience they have is useful and/or relevant or simply that their personality fits the parties involved and they can get along with a view to settlement. At Northwest Mediation we have a range of commercial mediation experience, and from our own experiences, but most important we find to many clients is that we talk straight, without legal terminology and will challenge any assumptions made by either side to a dispute.
“Simplicity, Flexibility” as mentioned above the rules are set by the parties, agreed via the mediator, what is off limits what additional matters might be brought in during discussions all helps resolve matters whether on the table at the outset or not. That flexibility avoids having to re-issue proceedings for further matters.
“Time Savings” time is finite for everyone involved but if you have IP rights which have a limited life span you cannot wait 2-3 years t resolve matters via court.
“Cost Savings” rather speaks for itself but when you save time and stress the costs savings flow, even if matters do not fully resolve at mediation the issues will be narrowed and the likelihood is that this will save thousands of pounds in costs.
“Confidentiality” whilst important in every mediation for IP disputes there is an obvious need for confidentiality, there are trade secrets, future plans and acquisitions aspirations which can be looked at in mediation without them becoming known to both parties or the world in general so the mediator can understand the parties’ needs.
“Finality” under the WIPO guidance the result of the ADR process is binding, as with any mediation if the parties agree they end up with a contract which itself is binding on them and enforceable, more importantly they have come to that agreement and not had it forced on them by the court.
“Diverse Solutions” as mentioned above the wide scope of mediation allows the parties to find novel ways forward, it’s not always about the money, sometimes it’s the use of the mark or an apology which can lead to the win-win of mediation.
Back in the more familiar setting of family mediation in family law news this month Rachael Blakey sets out the empirical evidence that mediation is working.
It’s not the first study but it is the most recent and one of the more in depth reviews as Rachael had access to various public documents regarding the use of and outcomes from mediation in the courts in England and Wales.
She addresses three areas, the avoidance of legal wording (see above), the non-traditional approach of mediation (including online mediation) again see the comments above and the positive presentation by the courts and the lawyers involved in respect of mediators, something still a little lacking in the civil courts.
Northwest Mediation can help with any dispute whether it's an employment issue or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes or inheritance arguments contact Northwest Mediation on 07931318347 or via email at email@example.com
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