Intellectual property litigation is demanding. It takes time and money, and frequently quite a lot of both.
Is there a better way?
That was the question posed to a panel of seasoned IP arbitration and mediation practitioners from around the world on the latest webinar in the Lifecycle of a Smart Idea series.
What was their verdict?
The panel praised the flexibility of both arbitration and mediation. The parties effectively own the process – they are not stifled by rigid court rules. They can choose the venue of the battle, the governing law, and the identity of the arbitrators. They can stipulate timetables and how costs will be awarded.
Particular note was taken of the issue of confidentiality. Both mediation and arbitration procedures are entirely confidential until the parties agree otherwise – so delicate commercial issues and potential weaknesses can be aired in proceedings without alerting the whole world.
Choice of remedies
For mediation, the panel observed that any outcome is possible. The parties can agree on whatever they want, and are not restricted by the limited available remedies offered by court or even arbitration procedures. UK panellist Gordon Harris noted that as a mediator, he had managed to get siblings who had been fighting over the family name for respective businesses to embrace when the case settled. As he observed, "you don't see that in court."
The general application of the New York convention means that most countries, including Russia and China, recognize and enforce arbitration rulings from accepted arbitration service providers, meaning that the outcome of an arbitration can be more global than a single national court hearing. It was noted that even the validity of a registered IP right can be the subject of an arbitration ruling as between the parties.
Important to make it contractually enforceable
The panel observed that it is vital that a successful mediation be reflected in an immediate contract of compromise to cement the deal and make it contractually enforceable going forward.
Definitely an option to consider
Overall, the Gowling WLG panel endorsed both arbitration and mediation as very suitable for the resolution of IP disputes, and well worth proper consideration.
Looking for support in resolving your IP dispute? We invite you to connect with one of our panelists, or any member of our global IP litigation team.
Watch previous episodes
This is the eighth installment in our Lifecycle of a Smart Idea series, dedicated to helping you maximise opportunity and minimise risk when taking innovative ideas to the global market. Watch more from the series »