Tuesday, 10 July 2012

Mediation Services

The IPO mediation room ?
The IPO is currently making a call for evidence to try and work out why it is not getting any mediation business. Is it because nobody suggests it, or no lawyers want it, or we are all just ignorant that the IPO has a service to offer.  It would be good to know so can we send our input.

From my viewpoint, I have aspired to use mediation far more often than I have ever achieved it. My best results have been with the mediation element of the Nominet Dispute Resolution Service. They have a simple approach and it costs nothing and it uses the pleadings you have already prepared. Best of all it takes place over the phone and is initiated by Nominet not the parties. It would be neat if the IPO were able to have a staff member read the Patents County Court Pleadings and offer a similar approach, though would it be before or after the CMC - ideas?

Other recent reasons why I have not got disputes into formal mediation include:
  • the parties are physically too far apart so coming together for a meeting is impossible
  • the other side tells me to stop calling and suggesting that settlement might be something we can discuss
  • its too hard to decide who will appoint the mediator and who will pay the cost
  • the £££ charge of the best mediators are disproportionate to the value in dispute
  • you mean we need a suite of three rooms in central London!
  • the decision makers are not prepared to come and spend the time on it - they employ lawyers they don't want to do it themselves
  • the idea of preparing a bundle and argument for the mediator is too much extra expense
  • the client thinks he is going to win
  • getting a debate going on the blogs and on twitter about the rights and wrongs of the case is so much more fun
  • a mediator cannot invalidate the patent/trademark/registered design
A mediator has to be a certain type of person, who is learned and fair without coming across as judgmental. The IPO has a role that involves making decisions and it may well be that this makes them come across as more on the side of the gamekeeper. However they are not-for-profit, whereas most mediators are working for profit, so its as good a starting point as any. Maybe all they need is a few more Google Ads.

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