Resolve IP issues with the help of a third party

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 to identify issues, assess options, and negotiate a mutually acceptable agreement to resolve their dispute. 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 like 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 in different ways, including communicating directly through telephone discussions, email correspondence or instructing their legal representatives that they would like to try mediation to resolve their dispute. 

Mediation is an attractive option for parties who:  

are willing to participate in the mediation process
want to preserve their relationship, for instance when parties have an existing contractual or business relationship
want to maintain control over the dispute settlement process, with some flexibility to shape the mediation procedures without procedural rules being imposed by others
want to avoid the cost and stress of a more formal dispute resolution process
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:  

either party is not willing to participate in the mediation process
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, or 
either party considers that the issue cannot be resolved through mediation.

What are the benefits?

Costs are generally lower than more formal dispute resolution processes.
Disputes can often be resolved more quickly through mediation than through more formal dispute resolution processes.
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.
The parties are free to agree to 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 and avoid any reputational damage that might arise from a public dispute.
Following a mediation outcome, it is open to the parties to the mediation to take further steps between them. This can include entering into a legally binding agreement that sets out the agreed outcomes from the mediation.
Before commencing other enforcement processes, you may need to demonstrate that you have taken genuine steps to resolve your dispute and a genuine attempt at mediation may, depending on the circumstances, satisfy this requirement.

What are the risks?

Relies on genuine engagement and willingness of parties to resolve issues.
You should ensure that your selected mediator has the skillset required to resolve your dispute – particularly where it involves complex IP issues.
If you do not agree to enter into a legally binding agreement that sets out the agreed outcomes from the mediation, it may be difficult to enforce the outcomes. This risk can be avoided if you enter into a legally binding agreement as an outcome of mediation.

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 (document preparation, correspondence, etc.).

The primary cost in mediation process is typically 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 a 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 lawyer or IP attorney, to act on your behalf will incur additional 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?

Mediation is commonly used to resolve intellectual property disputes both before and after bringing legal claims in court.

In the 2023–24 financial year, intellectual property disputes were the type of dispute most commonly referred for mediation by the Federal Circuit and Family Court of Australia (Division 2) being referred for mediation in 65% of cases.¹

Who can use this?

Anybody who is a party to a dispute.  

Mediation requires engagement from both parties to the dispute. 

Who’s involved?

Parties to the dispute(s).
Mediator, whose role is to:
- facilitate 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
- help the parties to document the outcome of the mediation.
(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 your dispute:   

What are the desirable professional qualifications and specialist experience of the mediator? 
Is it more important for the mediator to have experience in the subject matter of the dispute, or the process of mediation itself, or are both required? 
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? 
Does a conflict of interest exist?

There is a wide range of mediation providers 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 Resolution Institute's Dispute Resolver Directory list 
The Australian Small Business and Family Enterprise Ombudsman (ASBFEO)  provides small business and family enterprises with information about dispute resolution options, access to mediation and alternative dispute resolution processes.
The World Intellectual Property Organization's (WIPO) Arbitration and Mediation Center  offers mediation, arbitration and expert determination to enable private parties to settle their international commercial disputes. For more information, see WIPO ADR options.docx 
the Australian Centre for International Commercial Arbitration  
the Mediator Standards Board  
the Australian Disputes Centre .

In addition to ASBFEO, the Small Business Commissions/Commissioners 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 an IP lawyer or IP attorney to obtain advice on whether ADR would be suitable for your situation and represent you throughout an ADR process.

To find an IP lawyer, you can search on your State or Territory’s law society website:

You can find a qualified IP attorney to assist you at: Find an IP attorney or firm | Trans-Tasman IP Attorneys Board . 