Note to readers: there won't be more than four posts on this topic today -- and there will be none tomorrow unless this Kat can persuade anyone to guest a piece for him. If IP dispute resolution is not for you, please bear with us!
Patricia García-Escudero (President of the Spanish Patent and Trade Mark Office) closed this opening session by explaining Spain's policy of promoting both mediation and arbitration of disputes, so long as these forms of alternative dispute resolution (ADR) are not excluded by the express will of the disputants.
|Is Latin about to|
make a comeback?
Where do the problems lie? One relates to information about mediation, Diana suggested. The Directive charges Member States with "encouraging" users, but doesn't explain what that means and it doesn't appear to embrace better information about choices available to prospective users. She then gave, by way of an example, her own experience of trying to get a rogue website which was using her name, in which she was sent to one authority after another and found herself going round in circles. "We need to increase the professional capability and the professional standing of mediators", she concluded.
|European Parliament: "We're here to serve",|
Cecilia reminds us
|JAMS: a sweetener for dispute resolution?|
Giuseppe then considered the pros and cons of requiring businesses to opt in or opt out, in terms of possible outcomes. "You can lead a horse to water but you can't make it drink", he reminded us. Opt-out is a way of leading IP disputants to the 'water' of mediation even if they choose not to drink. It's also worth experimenting with mandatory partial mediation, as is now the case in Italy. Turning to Article 1 of the EU Mediation Directive, he speculated that EU Member States that don't generate mediations may be in breach of its provisions. He contrasted the failure of EU Member States to boost mediations with the success of the courts in Manhattan in sending every fifth case for mandatory opt-out mediation (this appears to be an arbitrary figure that just "feels right").