Many intellectual property disputes never reach the stage of court proceedings. Some are dealt with by commercial negotiation, others by more structured processes such as arbitration or mediation.
Arbitration
Arbitration is way to bring a resolution without the need for the normal court process. It is a way in which a third party reaches a decision which is binding on the parties. There are a number of bodies which are able to provide arbitration facilities.
Arbitration has the following potential advantages:
- It is private
- It may be quicker than litigation
- The procedures are less formal
- A specialist arbitrator may assist in the resolution of highly technical issues.
Disadvantages:
- Certain remedies are not available such as injunctions
- Depending on the procedures adopted, the dispute may not receive the depth of investigation it would have done in the courts.
- It may be more costly as the parties have to pay the arbitrators' fees and other expenses.
Mediation and Other Forms of ADR
Mediation is one form of Alternative Dispute Resolution (ADR) where an independent third party is used to help the parties to reach a solution. Mediation can be a particularly useful method of achieving settlement as the mediator can explore all the possible alternatives and the parties can agree to settle in exchange for any kind of remedy. An example is that the parties may be able to conclude some form of licence for the infringing party to continue to use the mark subject to any concerns of the intellectual property owner being addressed. This kind of remedy would not result from a court hearing, which will tend to be much more black and white and usually comes down to the question of whether to award damages and if so how much.
The chosen mediator may, for example, be a lawyer with specialist knowledge of intellectual property issues or could be an expert in the relevant field; it is up to the parties to decide. The mediation will usually involve each of the parties having a separate room and one room where group discussions with the mediator will take place. The format is fl exible and will usually involve the mediator discussing confi dentially with each party what their respective positions are in an attempt to determine where there is scope for an agreement to be reached.
Advantages:
- Mediation is generally much quicker and cheaper than litigation
- Mediation is flexible and can suggest various solutions
Disadvantages:
- Either party may withdraw at any stage before a solution is reached
- Mediation agreements may be harder to enforce that court orders.
It should be noted that the Civil Procedure Rules stress the need for the parties to have considered alternative ways to resolve their dispute. As a result the courts will sometimes penalise parties who can be said to have dismissed the opportunity for mediation out of hand and have not given serious consideration to some form of ADR.
