This IP First Response website has been designed to help IP rights holders navigate IP infringement and enforcement by making it visible, accessible, and to provide information about the factors involved in pursuing different options. It does not provide legal, business or other professional advice, and none of the content should be regarded as recommending a specific course of action. We welcome any feedback via our IP First Response feedback form and by emailing us.

What is it? 

Mediation is a widely used type of Alternative Dispute Resolution (ADR) process where a neutral third party, called a mediator, helps parties negotiate a mutually acceptable agreement. Mediation is a flexible, straightforward and often very efficient method to resolving IP disputes.  

Mediation can be used at any stage during a dispute process. It can be a preventative method used prior to an actual dispute, where parties may have encountered a roadblock. It can also be used in early stages of disputes, when parties fail to reach a resolution on their own. Lastly, you may even engage in mediation during more formal dispute resolution processes (i.e. litigation or arbitration).  

While mediation can be ordered by court, it is often a voluntary process whereby disputing parties agree to negotiate an outcome with help from a mediator. Parties can discuss the suitability of mediation as a method to resolve their IP dispute and agree to participate in the process via different ways, including communicating directly through telephone discussions, email correspondence or instructing their legal representatives to do so. 

Mediation is an attractive option for parties that:  

  • place a premium on the preservation or enhancement of their relationship, for instance when parties have an existing contractual or business relationship  
  • seek to maintain control over the dispute settlement process, with some flexibility to shape the mediation procedures without procedural rules being imposed by others 
  • value confidentiality, or  
  • want to reach a speedy settlement without damage to their reputations.  

When is mediation not appropriate?  

Mediation isn’t for everyone. Mediation may not be suitable when:  

  • one or both parties need an impartial opinion on a matter of difference, perhaps to set a precedent or to be vindicated publicly on an issue in dispute  
  • a party is certain that it has a straightforward case to the extent that there is no room for settlement or negotiation 
  • deliberate counterfeiting or piracy has occurred.  

What are the benefits? 

  • Costs and duration of the process is generally quite low. 
  • Mediation can be conducted across different jurisdictions.  
  • Much less adversarial than other procedures such as arbitration and court proceedings, helping you preserve your relationship with the other party by reducing emotional strain and preventing the discussions from being too heated. 
  • Flexible and informal, as parties have control over shaping the process. 
  • Parties can narrow the scope of a dispute to the issues that matter to both sides. 
  • Offers broad, productive or creative solutions to issues. 
  • Confidentiality: the details of mediation and the resulting agreements reached are not publicly available, allowing parties to discuss commercially sensitive topics freely. 
  • The outcome of mediation can be enforceable in the form of a binding agreement as contractual clauses between the two parties, if the parties clearly intend and agree that the outcome of mediation is to be legally binding. 
  • Other enforcement processes often expect you to have negotiated in good faith before escalating (for example, a court is likely to require mediation be attempted before hearing a case). 

What are the risks? 

  • Relies on genuine engagement and willingness of parties to resolve issues. 
  • Facilitators may not have an adequate skillset for resolving complex intellectual property disputes. 
  • Outcomes may not be as easily enforceable as court or tribunal decisions, especially when parties have not clearly indicated that the outcome of the mediation is to be legally binding. 

What are the possible outcomes? 

Possible outcomes include: 

  • One party does not agree to engage in mediation  
  • Parties successfully negotiate and reach an agreement to resolve a dispute with help from a mediator 
  • Parties unable to reach an agreement and withdraw from the mediation process, with the possibility of one or more parties escalating the matter to other dispute resolution processes. 

What might the costs be?

The costs of mediation will typically include: 

  • Mediator's fee  
  • Travel expenses and venue costs (if in person, though online mediation is increasingly common) 
  • Administrative expenses (i.e. document preparation, correspondence, etc.). 

The primary cost in mediation process is the mediator’s fee. The hourly rate of a mediator would differ significantly depending on the subject matter of the dispute and whether you engage a private mediator or mediation services provided by court or other public bodies.  

While the fee for mediation by a court officer is $650 for each attendance, a private mediator typically charges $3,500 – $4,500 or more for a day of mediation.

Additionally, engaging an IP professional to act on your behalf will incur additional legal fees.   

How much time might be involved?

Length of mediation processes can vary. 

It can be anywhere between hours to multiple sessions over a few months depending on factors such as number and complexity of issues at hand. While some commercial mediation would take no longer than a few hours or a full day only, mediation with World Intellectual Property Organisation (WIPO)’s Arbitration and Mediation Center would typically take 3-4 months.    

Please note that the organisation, consultation and preparation of mediation can take a few weeks or months prior to the mediation session taking place. 

How often is this used? 

This is still being investigated and will be updated as the tool is refined. 

Who can use this? 

Anybody who is a party to a dispute.  

Mediation generally requires engagement from both parties to the dispute, though some mediation providers will allow a single party to submit a unilateral request for mediation and then encourage the other party to participate in mediation.  

Who’s involved? 

  • Parties to the dispute(s). 
  • Mediator, whose role is to: 
    • control the process  
    • create an environment where parties have a chance to hear and listen to each other in a respectful manner 
    • help keep emotions in check 
    • guide parties through discussions about the issues 
    • make sure all relevant issues are covered 
    • help parties explore a variety of options.
  • (Optional) Legal representation for one or more of the participants, noting that some mediation providers limit the participation of legal representation in dispute resolution processes. 

What do you need to proceed? 

Before you engage in mediation, you should think about whether mediation is a suitable dispute resolution method for your situation and what kind of mediator would suit your needs best. 

How do I choose the right mediator?  

It can be helpful to consider these questions when selecting a mediator to help ensure they are right for you:   

  1. Would the parties like the mediator to provide a neutral evaluation of their dispute, or act as a facilitator of their negotiations?  
  2. What are the desirable professional qualifications and specialist experience of the mediator?  
  3. Is it more important for the mediator to have experience in the subject matter of the dispute, or the process of mediation itself?  
  4. Is more than one mediator required? For example, do the parties come from different cultural and linguistic backgrounds? Or would it be beneficial to have both a technical expert and a mediation specialist as co-mediators?  
  5. Does a conflict of interest exist?  

There is a wide range of mediation providers, ranging from government and public-funded bodies to private practitioners. Here’s a list of directories and mediation providers that may assist you in finding a mediator you would like to engage:  

The Small Business Commissions in most states and territories can also assist with resolving business related disputes. They offer a variety of services to assist small business including low-cost mediation services.  

You can also seek help from IP professionals to seek advice on whether ADR would be suitable for your situation and represent you throughout an ADR process. You can find a qualified IP attorney to assist you at: Find an IP attorney or firm | Trans-Tasman IP Attorneys Board. 

See also

For more information on mediation and other types of ADR, see:  

Before you take any action, you should consider whether you need legal or professional advice specific to your situation. It is important to know what rights you have, what remedies are open to you, and the cost and likelihood of success. IP Australia provides information on getting professional assistance with your IP. In addition, the Institute of Patent and Trade Mark Attorneys Australia (IPTA) offers free 30 minute consultations with an attorney.

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