This blog was authored by Julie Robb, Specialist Intellectual Property Lawyer and NMAS Accredited Mediator. The views expressed do not necessarily reflect the views or position of IP Australia, and should not be taken as constituting advice. If you require guidance specific to your situation, you should consider seeking professional advice.
“Conflict is resolved not through compromise, but through invention.”
-Mary Parker Follett, Freedom and Co-ordination: Lectures in Business Organisation 1949
Conflict and disputes are almost always unwelcome disruptors, and for good reasons – they are almost always time consuming, stressful and costly. Whatever setting they arise in, personal or business, the challenge is to identify the best way to sort them out.
In the business of IP, disputes arise in all kinds of situations: joint ventures and partnerships, licensing arrangements, infringements. Litigation is always an option, but litigation is also always expensive, time consuming, stressful, hostile and risky. So it’s no wonder that alternative approaches have become better known and increasingly deployed.
The uptake of mediation is a prime example of this trend.
Whether your awareness of mediation comes from personal experience of family or workplace conflict, or the mordant wit of ABC-TV’s Fisk – mediation is now a fixture in the dispute resolution landscape.
You can find information about what mediation is and how it works elsewhere on the IP First Response site. This blog explores why mediation is especially well suited to disputes involving IP.
Mediation is creative
People who use their imaginations to come up with new solutions to problems as a way of life – people who create and exploit IP – are naturals for mediation.
Mediation is a process that gets people who are in conflict to move away from their strict legal position and how they got there to a forward-looking outcome that addresses their underlying motivations, interests and goals. This is done by listening with the aim of understanding what drives each other party, generating creative options to address those factors, reality testing for workable outcomes and negotiating an enforceable agreement that the parties can perform. There is a real chance for everyone to achieve a commercial outcome without anyone backing down.
In litigation, a judge or tribunal member conducts a technical examination of the facts that are presented to them within a structured rubric of laws and principles; partisan advocates prosecute their client’s case as best they can within the rules of evidence; the decision maker determines who is right and who is wrong – it is always a binary result – and then imposes their conclusion on the parties.
In mediation, the parties in dispute come together with a genuine willingness to try to reach an agreement that’s better than any autonomous alternative that is available to them. If they get there, it’s not by haggling or surrender, it’s by reframing the situation – taking a wider perspective – to identify more opportunities for a way through.
The process is guided and managed by the mediator, a neutral third party with no stake in the outcome. There is no predetermined constraint on what the solution will look like – the content of the resolution is determined by the parties themselves. It is a fundamentally creative process.
Mediation is good for relationships
No one has ever said that about litigation!
Magic happens in mediation – competitors become partners, infringers become investors, enemies find ways to co-exist.
Where relationships are ongoing and valuable, such as an exclusive licence of a software program that is essential to the functioning of a product, a long-term partnership, a creative collaboration that has enjoyed critical success – it is a drastic step to terminate the arrangement when problems arise.
Where those relationships exist in a specialist field – which is IP’s natural habitat – chances are that the participants in that field of activity will bump into each other (professionally speaking) again, and again. It’s career limiting to have one negative experience threaten all future projects with someone who could be a collaborator, and it’s potentially damaging to reputations to be associated with a nasty fight.
Parties in dispute might initially baulk at proposing mediation for risk of “looking weak”. But if the dispute becomes litigious, it is the well-established practice of the Federal courts to direct mediation at an early stage of proceedings – generally, once the parties have set out their positions in their pleadings. If disputants can see conflict as an opportunity to craft creative solutions, to rebuild trust, to forge new relationships, suggesting mediation before matters get to court can actually be a demonstration of commercial strength.
We all know the power of agency. However unpleasant it is to be in a dispute, everyone is automatically in a weaker position when you hand over the method for resolving it to someone you have no control over – no matter how strong your case is.
A case ends when a judge (or judges if the case goes on appeal!) decides who was right and who was wrong. It is entirely unsuccessful for the party who loses, and it is rarely satisfactory for the winner, who is almost always out of pocket and will have had a very unpleasant experience along the way.
On the other hand, a mediation is rarely unsuccessful: at the very least the parties have had the opportunity to gain insight into each other. This can result in a narrowing of the issues in dispute, or lay the seed for further negotiation down the track.
If mediation ends with a legally enforceable agreement, its terms will be the outcome of a collaboration that is designed to meet everyone’s goals, needs and desires, and to set the framework for a future relationship between them.
Mediation is not a panacea
For all of its advantages over litigation, and suitability for disputes involving IP, mediation is not appropriate for every IP dispute. If you hold a genuine concern for the security of your IP for instance, you may well need the assistance of the Court.
If you find yourself in the predicament of an IP dispute, don’t panic. First, get advice from a specialist lawyer. If the cost of doing so is prohibitive, contact the Australian Copyright Council(Opens in a new tab/window) for advice about copyright, and the Arts Law Centre of Australia(Opens in a new tab/window) for any legal dispute in the cultural sector. The Arts Law Centre also offers a bespoke alternative dispute resolution service(Opens in a new tab/window) with a panel of expert mediators.
Once you know your legal position, consider all of your options.
Mediation can be an element of a staged dispute resolution process and might include other specialist assistance elements, such as expert determination. Both the process and the outcome are flexible and in your hands. Given all of its complexity, cost, publicity, business interruption and hostility; and the ingenuity of those who understand the value of IP and innovation, litigation really should be the last resort if you have an IP conflict or dispute to resolve, not the first.
A postscript on Mary Parker Follett
Mary Parker Follett was born in Quincy, Massachusetts in 1868. She studied politics, philosophy and economics at Radcliffe, a women’s college that later became part of Harvard University.
During her lifetime she was regarded as a pioneer in the fields of management, leadership and conflict resolution. After her death in 1933 she fell into obscurity, but in the past 30 years recognition of her contribution to the foundational concepts of modern mediation has been restored.
In 1918 she wrote:
“We have thought of peace as passive and war as the active way of living. The opposite is true. War is not the most strenuous life. It is a kind of rest cure compared to the task of reconciling our differences … From War to Peace is not from the strenuous to the easy existence; it is from the futile to the effective, from the stagnant to the active, from the destructive to the creative way of life … The world will be regenerated by the people who rise above these passive ways and heroically seek, by whatever hardship, by whatever toil, the methods by which people can agree.”
from The New State: Group Organization the Solution of Popular Government
Further reading
If you’re interested in learning more about mediation, please see the following links:
Resolve IP issues with the help of a third party