ASSIGNMENT OF ALTERNATIVE DISPUTE

REDRESSAL

TOPIC-MEDIATION AND NEGOTIATION IN

INTELLECTUAL PROPERTY RIGHTS DISPUTES

REG. NO.- 11503076

SUBMITTED TO; SUBMITTED BY;

MISS POOJA AGRAWAT MILAN SINGH
{ASSISTANT PROFESSOR} SECTIONL1504

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 TABLE OF CONTENTS

SR. PARTICULARS PAGE

NO. NO.
1. INTRODUCTION 3

2. INTELLECTUAL PROPERTY RIGHTS 3

3. MEDIATION 3-4

4. CHARACTERISTICS OF MEDIATION 4-6

5. NEGOTIATION 6

6. CHARACTERISTICS OF NEGOTITION 7-8

7. ADVANTAGES OF ADR 8-9

8. LIMITATIONS OF ADR 9-10

9. CONCLUSION 10

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MEDIATION AND NEGOTIATION IN RESOLVING THE
INTELLECTUAL PROPERTY RIGHTS DISPUTES

INTRODUCTION

There are various alternative ways to resolve the disputes and it includes mediation and
negotiation. Intellectual property is non exclusive and immediately transmissible, multiple
persons can enjoy its application at the same time. There are various benefits of intellectual
property and disadvantages also, like it can be exploited by persons other than the owner
without having permission to use it. So to resolve all these types of matters which are related
with intellectual property like, infringement there are alternative methods which really
helpful and also save the precious time and money of the parties and biggest benefit of these
methods are out of court settlement. These methods also cost effective.

INTELLECTUAL PROPERTY RIGHTS

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and
artistic works; designs; and symbols, names and images used in commerce.IP is protected in
law by, for example, patents, copyright and trademarks, which enable people to earn
recognition or financial benefit from what they invent or create. By striking the right balance
between the interests of innovators and the wider public interest, the IP system aims to foster
an environment in which creativity and innovation can flourish.

Intellectual property assets are central components of the contemporary knowledge economy.
Therefore, it is essential that they be managed efficiently and in order to do so, the option of
dispute resolution must be clearly spelled out.

Although an intellectual property dispute can be resolved through court litigation, mediation,
arbitration or other alternative dispute resolution procedures is frequently resorted to as ADR
is appropriate for most intellectual property disputes.

Mediation, specifically, is an attractive option for parties that place a premium on the
preservation or enhancement of their relationship, seek to maintain control over the dispute
settlement process, value confidentiality, or want to reach a speedy settlement without
damage to their reputations.

MEDIATION
In a mediation procedure, a neutral intermediary, the mediator, helps the parties to discuss the
problem and reach a mutually satisfactory settlement of their dispute. Mediation is an

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efficient and cost-effective way of achieving result while preserving, and at times even
enhancing, the relationship of the parties.

The principal CHARACTERISTICS of mediation are:

Mediation is a nonbinding procedure controlled by the parties

A party to mediation cannot be forced to accept an outcome that it does not like. A mediator
is not a decision-maker. His role is, rather, to assist the parties in reaching a settlement of the
dispute. The parties can also decide on how the mediation should be conducted with the
mediator. They are also free to abandon the process at any time after the first meeting if they
find that its continuation does not meet their interests.1

Mediation is a confidential procedure

In mediation, the parties can keep information confidential. If, in order to promote resolution
of the dispute, a party chooses to disclose confidential information, that information cannot,
be provided to anyone, including in subsequent court litigation or arbitration, outside the
context of the mediation. Mediation’s confidentiality allows the parties to negotiate more
freely and productively, without fear of publicity.

Mediation is an interest based procedure

In court litigation or arbitration, the outcome of a case is determined by the facts of the
dispute and the applicable law. In mediation, the parties can also be guided by their business
interests. Parties refer to their interests and engage in dialogue and choose an outcome that is
oriented as much to the future of their business relationship as to their past conduct. Even
when a settlement is not achieved, mediation never fails, as it causes the parties to define the
facts and issues of the dispute, preparing the ground for subsequent arbitration or court
proceedings.

Type of IP disputes that may be considered suitable for settlement by mediation include:

 Disputes about the licensing of IP rights;

 Disputes concerning the infringement of IP rights;

 Trade mark opposition and invalidation proceedings on relative grounds;

 Disputes over patent entitlement, e.g. whether co-inventor was employee or

consultant;

 Disputes over patent/trade mark ownership, e.g. whether employee developed

invention

 in their own or Company time; or

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www.wipo.int/wipo.

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  Disputes over patent inventor ship, e.g. the significant contribution made by a third
party.

Mediation through potential mediators with specific expertise in relevant technology can help
transform a potential prolonged litigation involving dreadful costs and money into an
arrangement suiting both parties’ business interests.

1) Parties can opt for mediation at any given moment. An ADR provision in a transaction
document may actually require them to try mediation before proceeding to arbitration or
litigation. But, in the absence of such a provision, the option remains available. Indeed,
parties can always agree to submit their dispute to mediation on a voluntary basis, regardless
of whether or not litigation has commenced.

2) The flexibility provided by mediation is unparalleled. Free to mediate or not, parties are
also provided with the greatest amount of control over the resolution process of their dispute.
They can control the length, the form, and the place of a mediation session. They also remain
in charge of the information to be considered, and the selection of the mediator himself.
Furthermore, unlike an arbitrator or a judge, a mediator does not render a decision. His role is
to facilitate a constructive and honest negotiation between the parties. This process provides
them with the opportunity to tailor the outcome of their dispute to their specific legal and
business needs, therefore reaching results beyond what courts and other types of ADR
processes can produce. Very often these results involve the amendment or the execution of
alternative or additional business arrangements (cross-licensing agreements, technology
transfer agreements, joint development agreements, distribution agreements, etc.). There is no
limit to how creative parties can be in crafting solutions.2

3) Being able to select experienced neutrals is a great advantage when it comes to IP disputes.
It allows parties to save time by not having to educate judges and jurors who may have little
to no knowledge of their specific industry. While only one mediator is usually selected, it is
not uncommon for parties entrenched in technical IP disputes to opt for a co-mediation
setting. A co-mediation format may indeed bring more experience to the table. One mediator
may, for example, have strong experience in addressing business disputes and building
consensus between parties, while the other mediator may be an expert in a highly technical
field (cloud industry, patents, nanotechnology, etc.). Because mediation is adaptable to the
level of complexity and the characteristics of a dispute, it can take a more direct and tailored
approach. Once the technicalities of a dispute are unveiled, mediators can assist the parties in
examining the economic aspects of their relationships. This analysis may, in turn, allow them
to elaborate new business strategies.

4) As companies of all sizes are gaining a global reach, international business transactions are
becoming more and more common, and so are cross border disputes. IP cases that are
international in scope are particularly well suited for mediation. Unlike litigation, which has
to be resolved within the confines of governing laws and legal procedures, mediation suffers
from no such limitations. When opting for mediation, parties are able to shield themselves

2
www.civilmediation.org.

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from specific risks like the unfamiliarity of national courts with foreign laws, long and costly
court proceedings, unpredictable or inconsistent court decisions, as well as potential
enforceability problems. By using mediation as a unique forum to resolve what could be a
multi-jurisdictional IP litigation, parties are able to save a great amount of time. And, most
importantly, mediation fosters the finding of a single and global solution tailored to the
parties’ needs.

5) IP disputes are generally very long and costly – especially due to endless discovery phases.
When assisting parties in framing their issues, a mediator is providing them with an
opportunity to narrow down the perimeter of discovery to what is really related to their
dispute. Also, because a mediator facilitates the exchange of relevant information and
positions between them, the parties remain actively engaged during the entire resolution
process. More generally, the pace mediation is able to impose on the participants also allows
the resolution process to be less disruptive to their own businesses.

6) Most IP disputes occur between parties who already have a history together. Very often, IP
disputes involve parties who are (or were) partners, members of joint ventures, licensor and
licensee, etc. Some of these relationships were hard and costly to form. Destroying them
through litigation or arbitration could lead to even more expenses and time spent researching
for a new partner. Therefore, despite the apparent bitterness that can exist between them,
parties involved in IP disputes are usually more incline to work on their issues. In this
respect, mediation can help re-establishing the lost trust, and preserving on going
relationships.

7) Every time a lawsuit is filed, it becomes public record. The confidentiality of mediation
sessions is therefore fundamental in IP disputes. At the core of these disputes is the existence
of information parties are trying to protect from the public and their competitors. If
successful, nothing will ever be filed and the information will remain confidential.3

NEGOTIATION-communication for the purpose of persuasion is the prominent mode of

dispute resolution. Compared to processes using mutual third parties, it has the advantage of
allowing the parties themselves to control the process and the solution.

Essentials of Negotiation are:

1. It is a communication process;

2. It resolves conflicts;

3. It is a voluntary exercise;

4. It is a non-binding process;

5. Parties retain control over outcome and procedure;

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www.metrocorpcounsel.com.

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 6. There is a possibility of achieving wide ranging solutions, and of maximizing joint
gains.

In India, Negotiation doesn’t have any statutory recognition. Negotiation is self counseling
between the parties to resolve their dispute. Negotiation is a process that has no fixed rules
but follows a predictable pattern.

Characteristics of a negotiation

Negotiation is:

 Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process. Parties may participate directly in the negotiations or they may choose to be
represented by someone else, such as a family member, friend, a lawyer or other
professional.

 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties.

They can range from two individuals seeking to agree on the sale of a house to
negotiations involving diplomats from dozens of States (e.g., World Trade
Organization (WTO)).

 Non-adjudicative: Negotiation involves only the parties. The outcome of a

negotiation is reached by the parties together without recourse to a third-party neutral.

 Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the
subject matter, timing and location of negotiations. Further matters such as
confidentiality, the number of negotiating sessions the parties commits to, and which
documents may be used, can also be addressed.

 Confidential: The parties have the option of negotiating publicly or privately. In the

government context, negotiations would be subject to the criteria governing disclosure
as specified in the Access to Information Act and the Privacy Act. For general
information on the privileged nature of communications between solicitor and client
during the course of negotiations, please refer to the Department of Justice Civil
Litigation Desk book.

 Flexible: The scope of a negotiation depends on the choice of the parties. The parties
can determine not only the topic or the topics that will be the subject of the
negotiations, but also whether they will adopt a positional-based bargaining approach
or an interest-based approach.

Negotiating is currently the main method of resolving commercial disputes.

The first reason for this is because it takes less time and allows for financial savings as
compared to systematically bringing proceedings in front of the national or foreign courts

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 or arbitral tribunals, with their uncertainties, their complexity, the significant time often
required to obtain a final decision, and the related costs incurred both inside and outside
the company.4

The second reason concerns the cultural change that is currently taking place, linked to
the increasing pace of innovation, use of the Internet and the exponential increase of
cross-border commercial trade. This leads to a decrease in the influence of the tradition
hierarchical structures of society. The pacifying role of the State, as a recognised
decision-making body for settling disputes in an authoritarian manner, is thus called into
question. The vertical society characterised by an “imposed order” is moving towards a
horizontal society marked by a “negotiated order”. This is also called the ‘negotiation
revolution’.

Finally, the third reason seems to be inherent in the intellectual property field itself in
which reputation is essential and in which economic players are generally “forced” to
operate on the same competitive market. They are therefore more inclined to look for a
negotiated “settlement” than in other fields of international trade.

However, companies rarely consult their lawyers in order to build a real negotiation
strategy and lawyers rarely offer negotiating skills.

However, lawyers have a duty to defend the interests of their clients. In the event of legal
proceedings, lawyers are now obliged, pursuant to Article 56 of the French Civil
Procedure Code, to inform the court in the writ of summons of the steps taken in order to
resolve the dispute amicably. Even though this information is rather like a boilerplate
clause, the lawmaker encourages the parties to settle, certainly because it also sees this as
a way of unclogging the courts.

Lawyers are companies’ natural advisors and are prepared for this task through their
professional training and their code of professional ethics. However, at the present time,
few economic players have been trained in the principles of negotiation and/or mediation
and put them at the very heart of their professional practice. In the author’s opinion,
lawyers would be advised to show an interest in this subject and to continue to train in
order to be able to offer their clients negotiating skills that are complementary to their
traditional judicial and advisory activities, in order to remain their main advisor in
conflict and dispute resolution.

Advantages of Alternative Dispute Resolution

The advantages of ADR are increasingly recognized. They include the following:

 A single procedure. Court litigation in IP disputes can involve a multitude of

procedures in different jurisdictions with a risk of inconsistent results. Through ADR,
the parties can agree to resolve in a single procedure a dispute involving a right that is

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https://www.lavan.com.au.

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 protected in a number of different countries, thereby avoiding the expense and
complexity of multi-jurisdictional litigation.   

 Party autonomy.  Because of its private nature, ADR offers parties greater control
over the way their dispute is resolved. Unlike in court litigation, the parties may
choose the procedural rules, the applicable law, the place and the language of the
proceedings.

 Neutrality.  ADR can be neutral to the law, language and institutional culture of the
parties. It can thus eliminate any home court advantage that one of the parties might
otherwise enjoy in the context of court litigation, where familiarity with the applicable
law and local processes can offer significant strategic advantages.

 Expertise.  The parties can select arbitrators or mediators who have special expertise
in the legal, technical or business area relevant for resolving their dispute.

 Confidentiality.  ADR proceedings are private. Accordingly, the parties can agree to
keep the proceedings and results confidential. This is particularly important where –
as is often the case in IP disputes – confidential information or trade secrets are at
stake. It also enables the parties to focus on the merits of the dispute, without being
concerned about its public impact to their reputation.

 Finality and enforceability of arbitral awards.  Unlike court decisions, which can
generally be contested through one or more rounds of litigation, arbitral awards are
not normally subject to appeal. Their enforcement across borders is greatly facilitated
by the United Nations Convention for the Recognition and Enforcement of Foreign
Arbitral Awards of 1958, known as the New York Convention, which requires all 137
Member States to recognize arbitral awards without review on the merits.

 Cheaper and faster. Any party to a commercial dispute, let alone an IP dispute,
should consider ADR for two reasons: time and money. ADR processes are cheaper
and faster than litigating in Australia or overseas. Further, they are particularly well
suited to the resolution of IP disputes.5

 ADR is well suited to international disputes and avoids many of the conflict of laws
issues of cross-border litigation.

 The technical and specialized nature of IP disputes lends itself to engaging experts, to
mediate, make a determination or arbitrate.

 The short product and market cycles of IP favors resolution of disputes very quickly.

 ADR processes are confidential.

 ADR allows for the preservation of commercial relationships which suits the
collaborative nature of the creation and commercialization of IP.
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www.businesstransactionsblog.com.

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Limitations
ADR does also have its limitations, and certain objectives can only be attained through court
litigation. In particular, it is not possible to obtain through ADR a decision that would set a
public legal precedent. The results of an ADR procedure, an arbitral award or a settlement
agreement, are in principle binding only on the parties involved. So for example, if a party
wished to obtain a generally binding decision that the claims of a particular patent were
valid/invalid, the only means of obtaining such a "public" decision would be a court
judgment.6

In addition, the consensual nature of ADR makes it less appropriate if one of the two parties
is uncooperative. Since both parties must agree to use ADR, no party can force another to
participate.

Intellectual property (IP) is, by its very nature, global in a way that other forms of property
are not.  Information, the subject matter of IP, is instantaneously transmissible.  IP is non-
exclusive, such that multiple persons can enjoy its application at the same time.  This is its
greatest strength and its greatest weakness.  It is strength in that IP can be exploited by its
owner globally; a weakness in that it can be exploited by persons other than the owner,
without permission, more conveniently than any other forms of property.

The global nature of IP is fertile ground for the germination of global disputes.  This article
considers a method of dispute resolution particularly suited to international disputes that all
owners of IP should be aware of: alternative dispute resolution.

CONCLUSION
Mediation and negotiation both are helpful in resolving disputes related with intellectual
property. These ways are really cheaper and time saving and these are better than lengthy
litigation procedures. It gives us quick decisions and all the reports are confidential. These
alternative dispute resolution methods really beneficial in case of any intellectual property
disputes. It is the need of time to have an active law and set up which can solve the disputes
out of court with a fruitful and satisfactory decisions, though in 19th century or earlier we
have had various techniques to solve the disputes but now in this modern era the branches of
ALTERNATIVE DISPUTE REDRESSAL [MEDIATION AND NEGOTIATION]
particularly in INTELLECTUAL PROPERTY RIGHTS DISPUTES are doing well enough
to reach at a satisfactory decision or fruitful decision. All in all mediation and negotiation are
very well established principles or rules for solving any dispute.

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www.ebresourcegroup.com.

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