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WIPO: Understanding Mediation

Posted March 11th, 2012 by admin

WIPO Arbitration and Mediation Center

 

In a previous article we introduced the alternative dispute resolution services (ADR) offered by the WIPO Arbitration and Mediation Center (WIPO Center) to resolve ICT disputes in a rapid and efficient manner.  In this article we will illustrate the benefits that one of those ADR options, mediation, presents to parties to an ICT dispute.

 

Understanding Mediation

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute.

Mediation is an efficient and cost-effective way of achieving settlement while preserving, and at times even enhancing, the relationship of the parties. The WIPO Center’s experience evidences that 70% of the mediations administered by the WIPO Center have been settled.

The principal characteristics of mediation are:

• Mediation is a non-binding procedure controlled by the parties

A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator’s role is, rather, to assist the parties in reaching a settlement of the dispute. If parties choose WIPO mediation, they can draw upon a database of over 1,500 independent WIPO arbitrators, mediators and experts from several jurisdictions, including Singapore.

Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin.

If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.

• Mediation is a confidential procedure

In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, under the WIPO Mediation Rules, be provided to anyone – including in subsequent court litigation or arbitration – outside the context of the mediation. Under the WIPO Mediation Rules, the existence and outcome of the mediation are also confidential.

Mediation’s confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.

• Mediation is an interest-based procedure

In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In a mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

Referral to WIPO Mediation is consensual and to facilitate party agreement, the WIPO Center provides recommended contract clauses (for the submission of future disputes under a particular contract) and submission agreements (for existing disputes).

For further information on how mediation works, we recommend reading a detailed step-by-step description of a WIPO mediation at http://www.wipo.int/amc/en/mediation/scenario.html.

A Successful Story: A WIPO Mediation of an IT/Telecom Dispute
A software developer based in the United States licensed software applications to a European provider of telecommunications services. The agreement included a clause submitting disputes to WIPO Mediation, followed, in the absence of a settlement, by WIPO expedited arbitration.

A controversy arose as to whether the licensee was entitled to let certain affiliated parties have access to the software, and whether additional license fees were due in respect of those third parties. The dispute was submitted to WIPO mediation.

Taking into account the criteria identified by the parties, the WIPO Center proposed as mediator several candidates with experience in the area of software licensing and appointed a mediator in accordance with the parties’ preferences.

Mediation sessions were held at a location that was convenient to both parties. The parties developed a mutually acceptable framework for the mediation process and solved a number of the issues in dispute. Using some of the options developed during the mediation, direct negotiations between the parties continued after the termination of the mediation to solve their remaining issues.

SiTF and WIPO Collaboration
SiTF and the WIPO Center have established a relationship to raise awareness of ADR options to court litigation available to ICT vendors, their partners and customers. For this purpose, SiTF and the WIPO Center collaborate in the organization of trainings on legal topics in the ICT sector. In this regard, SiTF and the WIPO Center organized a seminar on Preparation for Mediation of IT Disputes on December 7, 2011 at Maxwell Chambers.

SiTF members also enjoy special rates when using the WIPO Center dispute resolution services.

WIPO Arbitration and Mediation Center
The WIPO Center is part of the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations dedicated to developing a balanced and accessible international intellectual property system. With offices in Geneva, Switzerland and, since 2010, at Maxwell Chambers in Singapore, the WIPO Center is a neutral, independent, international and non-profit dispute resolution provider that offers ADR services, such as mediation and arbitration to enable parties to efficiently settle their disputes. The WIPO Center is particularly recognized for the administration of international intellectual property, technology and entertainment disputes involving private parties.

For more information on the WIPO Arbitration and Mediation Center, please click here.

To download special WIPO Mediation / (Expedited) Arbitration rates for SiTF Members, please click here.

 

 

Contact Details
Mr. Leandro Toscano
WIPO Arbitration and Mediation Center Office in Singapore
Maxwell Chambers
32 Maxwell Road #02-02
Singapore 069115
T +65 6225 2129
F +65 6225 3568
E arbiter.mail@wipo.int
W www.wipo.int/amc