The final session of today's experimental conference, IP: the "no-patents round-up for non-techie people", starred Edward Smith, an accredited mediator as well as being a Hearing Officer with the UK Intellectual Property Office (IPO). Edward spoke on the IPO's mediation service, reminding us that the IPO was not alone: the Office for Harmonisation in the Internal Market (OHIM) has its own service, which operates on a narrower basis and is correspondingly less used. IPO uses the World Intellectual Property Organization (WIPO)
mediation rules, which operate on a confidential basis, both as between the parties and between both parties and the outside world. This confidentiality is one of the biggest advantages offered by the process, which ideally ends with a negotiated agreement.
Mediation focuses on the future, not the past, and deals with reality, not with justice. Said Edward, we all love reading the latest cases -- but in terms of what the law is, we really don't care! Mediators are interested in the outcome, not with the positions adopted by the competing parties. It's important to get the venue or medium right. Telephone mediations are dire, and generally don't work well. A good venue, preferably with coffee and sandwiches, works better. OHIM's mediations require a trip to Alicante as well as an admissible appeal -- and there are also language issues. Is there an optimal time to mediate? Some people say that, the closer the parties are to the hearing date, the more difficult it is to mediate
[this is a little odd, in that settlements so often appear to be made at the door of the court immediately before the hearing ...].
So far the IPO has done 12 mediations, of which six settled on the day, three are "don't knows" (the parties have got together and then gone away, and legal proceedings have been withdrawn, but the precise outcome is made known). They are far cheaper than litigation and generally far speedier. What's more, the breadth of solutions provided by mediation is far greater than that available in the courts, and people involved in the process are spared the trauma of being cross-examined by hostile counsel.
Some disputes cannot be mediated. Where the participants lack authority or proper preparation, settlement prospects are poor. Likewise, people who turn up only because the judge has told them to, in order to tick the I've-turned-up-for-mediation" box, or those who are aggressive or mentally impaired, do not make good participants in the mediation process.
