31st Jul 2021
Author: Saakshi Singh Rawat, LLB (Hons), Bennett University
What is Mediation?
Mediation is a process that helps the parties to reach a mutual agreement for their dispute. The experiences under intellectual property litigation have shown that they end up in settlements. Mediation is a cost-effective and officiant way of achieving the result. The principal characteristic of meditation is that it’s a non-binding procedure that is controlled by the parties and not by the legal authorities. The parties have the whole power and control over the situation, it is up to them what the outcome of the process of mediation would be. The parties decide the place for mediation as well as the seat of mediation. It is up to the parties to continue with the process of mediation, if they don’t feel like it, they are free to dissolve it if they think their interest would not meet. The mediation is a confidential procedure and no information is disclosed without the consent of the parties. It is an interest-based procedure it is of interest wages procedure, and the outcome of the case is determined by the fact of the dispute. During the process of mediation, the parties engage in dialogue, I am putting up the disputes and resolutions on the table and finding the best way out of it. The mediation process many times creates more value and solves relations between the parties. Further details can be found on the WIPO Mediation Rules.
The process of mediation:
Stage I – Pre-mediation meeting
Stage II – Introduction and opening statements
The mediator introduces himself, demonstrates his neutrality, and expresses trust in the mediation process. The mediator suggests that the parties identify themselves and strives to establish rapport with them to earn their faith and confidence. The goal is to foster a positive climate favourable to talks and to inspire parties to reach an amicable resolution of problems. The mediator takes command of the mediation procedure. Because there is no set of rules to be followed, the mediation method is flexible.
The opening statement of the mediator is meant to explain to the parties the concepts, procedures, and phases of mediation, the role of the mediator, advocates, and parties, and the benefits and ground rules of mediation.
The mediator ensures that the parties have understood the procedure and provides a chance for any questions to be answered. The negotiators are also asked to make statements. The parties articulate their viewpoints, making it possible for the other party to grasp what they desire. This is followed by a repetition of the situation by the mediator, with an attempt to include the various points of view.
Stage III – Joint Session
The mediator allows the parties to hear and comprehend each other’s viewpoints, relationships, and feelings. The petitioner is permitted to describe their argument in their own words, which is followed by their counsel’s presentation of the case and a summary of the legal concerns. Consequently, the defendant is permitted to explain their position, which is followed by the defendant’s counsel’s presentation of the case and description of the legal problems involved. The mediator makes an effort to comprehend the facts, concerns, barriers, and opportunities and ensures that each person feels heard. The mediator facilitates dialogue by asking probing questions to extract information. Following the conclusion of the joint session, the mediator may propose that each party engage with their counsel individually.
Stage IV – Caucus
The different sessions are intended to help the mediator have a better understanding of the issue. It gives the parties a place to express their thoughts and divulge sensitive information that they do not want to discuss with the other parties. It assists the mediator in understanding the parties’ respective needs, positions adopted and reasons for these stances, identifying areas of disagreement, unequal priorities, and similar interests, and shifting the parties into a mindset of finding mutually beneficial solutions.
The mediator’s role is to reinforce confidentiality, acquire further details, and challenge and analyse the parties’ views and beliefs to open their minds to new options. This will be accomplished by asking effective questions and assisting the parties in addressing the needs of their respective cases. The mediator proposes choices that he believes best satisfy the parties’ respective needs.
Stage V – Coming to an Agreement
If the sides achieve an agreement at the end of the mediation, the mediator will have the parties sign a document honouring the settlement agreed. The agreement is drafted by the parties or their attorneys and is legally enforceable by a court. Because the parameters were agreed freely, the parties are likely to follow through on their agreement. If litigation is underway and the parties agree, the agreement can be brought to the court for inclusion into an order that becomes part of the public record, or it can be declared confidential by the parties, with both agreeing not to divulge the contents of the agreement.
Patent infringement lawsuits, in particular, frequently involve concerns of wilful infringement, validity, injunctive relief, and unenforceability owing to, for example, inequitable conduct. Neither side will want to engage in mediation unless they are convinced that they have enough data to assess the strengths and weaknesses of their respective positions. As a result, before engaging in mediation, it is critical to create a procedure that meets both parties’ informational demands.
Why is mediation needed in Intellectual property disputes?
The mediation process is like an attractive premium offer to the parties for preserving and mending their relationships. The settlements are speedy and done in small groups which keep the talk inside and helps to keep the reputation also. WIPO has a mediation centre that provides non-binding procedures with a neutral intermediary, the mediator, and helps the parties in reaching the settlements. The mediator should always be neutral while the settlement, the WIPO highly emphasis on finding the suitable place for the resolution. Before the mediation starts both the parties negotiate and agree on practical matters relating to the process. It is their choice if they want the lawyers to be present or whether any other person except the parties will attend, the time and the place for the mediation also they come up with the agreement of how the mediators’ fees will be paid. The Caucus session where each party separately and confidentially is given time to discuss their views and their personal issues with the mediator and the other party is not aware of them. The WIPO rules also permit the parties to show their agreement for the mediation process in the coccus session if they are not comfortable speaking in front of the other parties.
- Mediation and arbitration are usually cheaper and do not run for long periods of uncertainty. It is the most beneficial in matters when the parties are of a different jurisdiction. It also saves the power, time, and money of the parties.
- In the mediation process and, unusually, one party is correct and the other part is wrong and only one party is benefiting from the mediation process, both parties have their issues and try to reach a sensible middle point and a fair solution.
- Most of the courts record the proceedings and it is highly that the public domain is aware of the situation going on and it is no more private but in the cases of mediation it becomes a private matter and is resolved between the parties, it also prevents the parties from the embarrassment and the level of confidentiality is higher in the mediation process.
- IP disputes may revolve around a lot of misunderstandings mediation can help in avoiding the blame game and it starts from the baseline from where the parties found themselves in the dispute situation and come up with the perfect solution and also know about ideas and the situation another party is in.
- The court decisions are depending on the jurisdiction may want to choose to settle the case to a point where it is not the interest of the parties or any one of the parties is getting profit out of it. Whereas mediation reduces the animosity and finds the issue and a solution for both parties. And also leaves a further scope for business between the parties and a friendly relationship which would not be possible in the court proceedings.
- It is often said that intellectual property cases are complex for the mediation process as they are a discussion between the parties who are facilitating a neutral decision or a satisfactory resolution, there are high chances that some core points of the dispute are hidden or there is a hidden agenda behind the solution. It becomes impossible during the mediation process to break up the issue and run into the parallel discussion on different points.
- Likely, the parties will not always cooperate and they cannot be forced to attend and sometimes there may be no outcome if the parties are not ready to attend or refuse to take active participation in seeking a solution.
- As it is known that the mediator is of the choice of the parties, sometimes it becomes difficult in finding a suitable mediator and one party may doubt the other party as the mediator is of their choice and of him being biased as the mediation sessions are more informal. It mostly happens in international cases. Another fact is that the mediator also the co-mediator and given a huge amount of money in the IP cases and a huge cost to find alternatives in the dispute resolution, sometimes There are two or more mediators for the settlement as it seems a very modest investment.
- The IP agreements are vulnerable and sometimes may result in a higher risk.
In IDA Ltd v the University of Southampton, involving a dispute about the ownership of intellectual property rights in a cockroach trap, the Judge held that as a result of the litigation there had not yet been any exploitation of the disputed patent, whereas eight years had expired since the original Patent Cooperation Treaty application.
Laws governing mediation in India
The Industrial Disputes Act of 1947 made mediation legally recognized as a technique of conflict settlement. Parliament enacted the Code of Civil Procedure Amendment Act in 1999. It included Section 89 of the Code of Civil Procedure, 1908, which permitted courts to use alternative dispute resolution (ADR) procedures to resolve outstanding issues. The parties’ consent was made necessary under this, and the court might submit matters for arbitration, conciliation, judicial resolution through Lok Adalat or mediation.
Furthermore, under r. 5(f)(iii)of the Civil Procedure- Mediation Rules, 2003, mandatory mediation is provided. If there is an element of settlement, this allows the court to assign cases to mediation even if the parties are not ready.
The mediation process can be very useful in many categories of intellectual property. The features of mediation itself may vary and it is more preferable than the litigation process as it is cheaper, less time consuming, and preserves the relationships and ongoing business relationships. The mediation is optional and should be carefully prescribed. The statute and the place mediation should be properly chosen as it may intimidate the weaker parties. The possibility is that it will result in unbiased favour and will help the parties in reaching the best outcome.
Intellectual property is an inventive sector that helps not just advancement, but also economic development. Commercial risks arising from IP breaches can result in considerable losses for customers’ enterprises. Mediation proved to be a more cost-effective alternative to litigation and allows for the fast resolution of IP-related issues. Furthermore, given the recent signature of the United Nations Convention on International Settlement Agreements Resulting from Mediation, and assuming its swift approval in Ukraine, there are promising possibilities for the effective use of mediation shortly.
 https://www.wipo.int/amc/en/mediation/rules/index.html / last opened on 29-06-2021 at 21:48pm.
 IDA Ltd v The University of Southampton (2006) EWCA Civ 145.
*The views in this article are author’s point of view. BSK Legal may or may not subscribe to the views of the author. This article is not intended to substitute legal advice. Any portion or part of this article can be reproduced, copied or used, in whole or in part, after giving due credit to the publisher. The Copyright of the article is with the author.