As anticipated here, I bring you a report of the WIPO 2-day course on mediation, held in Geneva earlier this week. The course was run by Bob Mnookin and Gary Friedman. They are both highly experienced mediators and lawyers who have mediated major commercial disputes in the US (and probably elsewhere), sometimes jointly. They have also taught mediation for many years (Bob Mnookin as Williston Professor of Law at Harvard Law School, and Gary Friedman mainly through the Center for Understanding in Conflict, in California).
Over 20 people attended the course; they included lawyers, patent attorneys, technology transfer executives and commercial managers from 7 European countries and the USA. Attendees from this blogger’s world included Lita Nelson, Director of the Technology Licensing Office at MIT (and co-founder of Praxis), Maxine Horn of Creative Barcode (and fellow member of the UK IPO’s B2B Licensing Committee), and Anatole Krattiger (now Director of the Global Challenges Division at WIPO, but formerly editor of an epic work, Intellectual Property Management In Health And Agriculture Innovation: A Handbook Of Best Practices, to which we contributed a chapter on option agreements). Other attendees from the UK comprised His Honour Michael Fysh QC (recently retired judge of the English Patents County Court), Ian Kirby, head of the London IP team at Arnold & Porter, and Gill Mansfied, an experienced IP lawyer.
The course leaders made a powerful case for their version of mediation, which is fundamentally different to the version that most lawyers in the UK will have encountered. In the Mnookin and Friedman (M&F) model, which they have taught to thousands of students over the last couple of decades, there are usually no private caucuses between the mediator and one of the parties alone. In the model associated with many prominent ADR organisations such as CEDR, most of the mediation usually consists of private caucuses, with the mediator engaged in shuttle diplomacy between the parties in their separate rooms.
An obvious objection to their model is that parties cannot disclose information privately to the mediator, and may have to reveal matters to the other side which would damage any court case if the mediation fails. To this, M&F have a number of responses, including:
- each party controls what information it wishes to disclose; there is no coercion or pressure from the mediator
- in litigation, a party would be unhappy if the judge had a private meeting with one of the parties, so what is so different about mediation?
- discussing matters in the presence of each other and the mediator, via a process negotiated and actively managed by the mediator, causes the parties to be more realistic and authentic than in the private caucus model. Lawyers have commented to M&F that in caucus-based mediations, they spend time and energy in trying to manipulate the mediator and manage his expectations, which is far more difficult to do if the other side is present during discussions.
M&F used the “tell, show and do” style of teaching, in which they first explained a part of the mediation process, then demonstrated it in a role playing exercise, and finally divided the class into teams to try out the process for themselves. Your correspondent was counsel for one of the parties in a biotech-sector patent and contract dispute, and the mediator in a dispute between the US author of a business book and a consultant hired to help write a version of the book for the German market. The stages of mediation that we focussed on included:
- the mediator establishing contact with the parties, and negotiating acceptance of the process. This may seem a minor aspect of the mediator’s task, but it is actually very important and the way he does this sets the scene for subsequent discussions.
- identifying each parties’ interests in the dispute, which are not the same as their negotiating demands. Interests usually have more than one possible outcome.
- discussing the parties’ legal rights and obligations (including what the legal risks are if agreement is not reached) as an important part of the context for the discussions but not as a primary or dominant factor in finding a mutually-agreed resolution
- developing options for resolution of the dispute in a brain-storming session, then evaluating those options, testing them against the parties’ interests, and finally (if the mediation is successful) reaching agreement.
It is an excellent course for experienced lawyers and managers in the IP field, and I thoroughly recommend it. For different reasons, I would also highly recommend WIPO’s two-day course on arbitration, which I attended a couple of years ago. The latter course is more concerned with hard law and procedure, and may be closer to the comfort zone of many IP lawyers and patent attorneys.