Thursday 27 October 2011

Mediation, IP practice and the good of one's soul

If only ...!
When an actor is out of work, he is never said to be unemployed: the polite euphemism is that he is "resting". Euphemisms for "unemployed" extend far beyond the sphere of thespianism, though. Thus a footballer who is no longer selected to play for his team is "regaining match fitness"; a politician who is voted out of Parliament is "considering his options"; IT consultants are "between projects", and so on.

Recent conversations with intellectual property practitioners -- both those who are unemployed and those who are underemployed -- have caused me to wonder whether we too have a euphemism for this condition. It's called "doing some mediation".

It's true that there are some fortunate souls who excel in this area, bringing not only satisfaction to those who engage them but creating and sustaining an income stream that, if not constant, is at least relatively stable and predictable. Many others, it seems, are only really dabbling in mediation as a means of keeping their hands in, retaining their sanity and temporising until something better comes up.

There are some good courses on mediation both within the IP sphere and outside it, and -- while there is little case law on the topic unless you count domain name dispute resolutions --while there is also a small but growing body literature on the subject, it seems to me that there is not much that's available on the subject which is so close to so many people's hearts, and that is their wsallets. How do you bill for your services with genuine conviction and turn IP mediation into a real living? Or is it, like a practice based on a minor IP right like registered designs, always likely to be the icing on the top of the cake rather than the cake itself?

1 comment:

  1. Wonderful stuff mediation and finding the right mediator can make all the difference. I would very much doubt if there is a living in it for IP matters. Aor those who could make it work, they can probably find other sources of income which are more reliable. Doing mediation does seem to be popular with those who retire but for those who are actively managing disputes, do you want to select a retiree as a mediator (especially if he has no previous experience as a mediator and plenty as a litigator)?
    It would be great if there were more mediation of trademark oppositions, but given that it is already an expensive option, it's only those doing it for altruistic purposes who are likely to keep busy.