Mediating disputes over IP agreements

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Last November, IP Draughts attended a 5-day course on mediation skills, run by CEDR – the Centre for Effective Dispute Resolution. CEDR is the leading provider of mediation services in the UK. The final two days of the course were an assessment of all the students in role-plays, where we took it in turns to be the assessed mediator, or a representative of the parties in dispute. IP Draughts particularly enjoyed playing the role of a grumpy elder brother in a dispute over a will.

Today, as promised by our teachers, we received our assessments. IP Draughts is delighted (and more than a little relieved) to discover that he passed, and he can now call himself a CEDR Accredited Mediator.

This follows his attendence, nearly 10 years ago, at the 2-day mediation course run by WIPO – the World Intellectual Property Organisation – in Geneva. There was no formal assessment at that course, but WIPO were prepared to add IP Draughts to their list of mediators, which he took as a sign that he hadn’t entirely disgraced himself.

A fair proportion of the agreements that IP Draughts encounters include an obligation on the parties to consider (or perhaps even go to) mediation before adopting a final dispute resolution process. The final dispute resolution process is typically either litigation in the courts of a named jurisdiction, or arbitration. Where there is a reference to mediation, the clause often also names a mediation body that will oversee the mediation and perhaps choose the mediator. CEDR is often named as the mediation body, at least in agreements drafted in the UK. CEDR’s model mediation clauses and mediation agreements can be found here.

It is not, strictly, necessary to name a mediation body, but doing so ensures that the process is a “known quantity”. Although the mediation process may vary in an individual case, a typical CEDR mediation is a one-day event and might cost in the region of £5,000, which allows for one day of preparation by the mediator, as well as attending the day of the hearing. The costs would typically be shared equally by the parties. The parties would, of course, also have to bear their own costs of preparing for and attending the mediation, eg the costs of their legal team.

If you simply refer to CEDR mediation without naming a mediator, IP Draughts understands that you will be allocated someone on their panel, though he needs to check whether parties can choose someone not on their panel. The panel is not the same as their (much larger) list of accredited mediators, and is in effect an inner circle of trusted mediators.

IP Draughts intends to build up a mediation practice, in addition to his other roles including practising as a lawyer in his firm Anderson Law LLP. He hopes you will consider naming him as the chosen mediator in agreements concerned with technology or IP, provided he has no conflict of interest such as regularly advising your organisation.

 

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