Michael Fysh spoke at fieldfisher’s Pharma Seminar on 16 October 2014. The following points are based on the handout he gave at the event.
Advantages of Mediation in General and in Pharma Cases
- Cost savings in a field where litigation is normally very expensive.
- Avoiding uncertainty, anxiety and commercial ‘downtime’.
- There are no appeals to worry about.
- There is no ‘judge risk’. Litigation inevitably has uncertainties.
- It is possible to settle international disputes involving the same parties and IP.
- Resolution of collateral disputes is possible.
- A wider range of possible solutions is available, and a skilful mediator will be able to provide solutions beyond the power of a Court to provide.
- Mediation is faster than litigation.
- Mediation allows confidentiality of sensitive commercial information.
- Mediation allows for a ‘win-win’ situation, for example by the setting up of a new commercial relationship.
- There is no costly enquiry into damages.
- Psychological/cultural benefits. For example there is no ‘loss of face’ as the parties themselves choose what to accept.
- What happens in mediation is ‘without prejudice’ and is not binding if mediation fails. The parties can go on to litigate confident that the mediation discussions remain confidential.
- Even unsuccessful mediation can lead to a better mutual understanding of the parties’ positions.
Disadvantages of Mediation in Patent Cases
- It needs the agreement of the other party to set up mediation. That requires time and so mediation is not suitable where emergency action is needed, such as an interlocutory injunction.
- It is impractical where a party wishes to create a legal precedent, for example the construction of a patent claim or contractual clause, or the Court’s view on a legislative development.
- It is unattractive to parties seeking summary judgment.
- It is not of interest where publicity is actively sought by a party.
- It is irrelevant where revocation of IP is sought where a Court will need to be involved.
You may also wish to see related posts Top 10 Points on Arbitration in UK Patent Disputes and Top 8 Points On the Disadvantages of Having a Specialist Patent Court.