These points are gleaned from a presentation at CIPA on 5 November 2013 providing general information about Alternative Dispute Resolution (ADR) and Mediation to UK Patent Attorneys.
1. ADR is very much a buzzword at the moment. As an alternative to court proceedings it is seen as a proportionate and cost-effective way of resolving disputes.
2. ADR relies on an impartial arbitrator or tribunal and is a consensual process. It is a forum that is not naturally suited to resolving IP issues because its philosophy conflicts with the concept of exclusive rights in IP, and so has not been commonly used in IP disputes.
2. It has more flexibility than court proceedings because the settlement can be defined by the parties. For example as part of the settlement one party might purchase the other.
3. It is important for the parties to be prepared properly beforehand, knowing their position and interests in a detailed way.
4. As arbitration proceeds there will be a narrowing of the issues until it essentially comes down to the compensation of a party in some way.
5. It is important for decision makers to be part of the process, such as CEO’s.
6. Experts can also be present, for example people with expertise in patent law.
7. Arbitration is very much being encouraged by the courts. In PGF II SA v OMFS Company 1 (2103) costs were denied because a party stayed silent in response to invitations to mediate.
8. However parties cannot be forced to mediate as that would conflict with the Article 6 of the ECHR (right to a fair trial); see Halsey v Milton Keynes General NHS Trust (2004).
9. Arbitration often works as forum for parties to vent their emotions. Once that happens agreement becomes possible.
10. Arbitration is not suitable in certain situations, for example where interim relief is required (though that can run in parallel) or where the animosity between parties it too great.