Mediation v Litigation

One of ACID’s objectives for 2007/8 is to expand its mediation framework and broaden awareness about the positive aspects of mediation as a realistic alternative to litigation in IP disputes. ACID’s new initiative Mediate to Resolve will also be looking at mediation as a positive aspect in conflict management. Did you know that, according to CEDR (Centre for Effective Dispute Resolutions) 33 billion pounds is lost each year in the UK through time lost in conflicts in the workplace? Patricia Jones, an Accredited CEDR mediator and a partner at ACID’s Accredited Law Firm Hammonds explores the benefits of mediation.

Very often parties in dispute adopt a “let’s sue them” mentality. However, there are various methods of resolving disputes, without necessarily racing down the route of litigation, such as mediation. Mediation is the informal process whereby a neutral third party assists those in conflict to achieve an outcome that is acceptable to both parties. The main advantages of mediation over litigation include:

  • Flexibility : Mediation offers a great degree of flexibility allowing for any remedy agreed between the parties, such as apologies, amendments to contracts and payments of money in instalments. In contrast, a judge is constrained in the remedies he can award.
  • Selection of Neutral : The parties can select their mediator, who is often trusted and respected by both parties and an expert in his field.
  • Cost and time : Mediation is considerably less expensive than litigation and occupies less management time. A mediator can bring value to the process giving the parties the best opportunity to have a constructive discussion, at an early stage before legal costs escalate and become a stumbling block themselves.
  • Nothing to lose : By entering into mediation, neither party loses their right to pursue other dispute resolution methods such as litigation. It can take place at any time, including during litigation. The mediation takes place in a confidential environment, unlike litigation which is open to public scrutiny, and is ‘without prejudice’ which means that the information disclosed during mediation cannot subsequently be used in court. The settlement reached by the parties sets no precedent so is ideal if a party wants to treat the dispute as a one-off.
  • Maintains relationships : Litigation by its very nature is adversarial and often irreparably damages relationships, whereas mediation encourages communication and co-operation between the parties and can often preserve relationships and generate future business.
  • Court expects mediation : Recent cases have shown that the Court may deny winners at trial their costs and expenses if they have unreasonably refused to mediate.

Therefore the question is not “why mediate”, but “why not mediate”?

Commenting on the initiative, Dids Macdonald, Chief Executive said, “Many ACID members have taken action against some well known retailer names as a result of alleged copying. Often the retailers adopt a legal strategy of stonewalling challenge and perpetuating litigation. I intend to include a further clause in the ACID Code of Conduct which will include agreeing to mediate if the complainant can provide compelling evidence of registered designs to support their design ownership. It will be interesting to see how many will respond positively.”

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