Economic incentives for IP mediation: the launch of the Mediation Promotion Scheme in Singapore

The legendary sports American sports commentator, Curt Gowdy, was well-known for saying that a given athlete "had all his future in front of him." While no doubt

intended as a compliment (the athlete had not come anyway near to achieving his potential), the saying took on an ironic, almost negative connotation. It was seen as suggesting that this person might never achieve commensurate with his capabilities. Gowdy's saying seems apt to the world of IP arbitration and mediation. Nearly everyone would agree that contentious proceedings are often slow and expensive, to the satisfaction of no one involved. One solution is to steer more disputes in the direction of alternative dispute resolution (ADR). Somehow, though, the uptake on ADR remains modest.

Against this backdrop, this Kat was intrigued by an announcement this week from the Intellectual Property Office of Singapore (IPOS), about the upcoming launch on April 1, 2016, of its Mediation Promotion Scheme. It is no secret that IPOS has been unusually active among national IP offices in the launch of multiple initiatives, in its case largely intended to put Singapore at the forefront of IP activities in Asia. These various IPOS initiatives are of interest not only on their own terms, but also whether they hold more general lessons for the broader IP community. The Mediation Promotion Scheme should be seen in this light.

In a nutshell—

"The Mediation Promotion Scheme is launched by the Intellectual Property Office of Singapore (IPOS) to fund parties’ mediation costs (administration fee and mediator’s fee) incurred with any mediation service provider, up to SGD 5,500 [approximately $4045.00] per mediation case.

The Mediation Promotion Scheme encourages parties in IPOS proceedings to Choose mediation by funding the process, so that more can experience mediation as an attractive alternative to a hearing at IPOS for resolving their disputes satisfactorily."

The Scheme will apply to proceedings that are pending at IPOS, as of April 1, 2016. These proceedings cover trade marks (oppositions, applications for revocation, declarations of invalidity and rectifications), patents (revocation), registered design (revocations) and plant varieties (objections to application or registration of denominations). The parties may use any mediation service provider that is an organization (such as WIPO or the Singapore International Mediation Center). The parties must satisfy three conditions: (i) disclose any agent fees; (ii) provide feedback of the mediation experience; and (iii) allow "minimally" that a shadow mediator sit on and observe the mediation. The funding of the mediation is not dependent upon the outcome of the proceedings. IPOS has budgeted for approximately 30 cases of mediation through March 2019.

This Kat, having sat at the knees of the law and economic approach during law school, has remained intrigued about the potential for economic incentives to affect legal behavior. The Mediation Promotion Scheme would seem to be an excellent example of this approach. As IPOS states—

"The Mediation Promotion Scheme encourages parties in IPOS proceedings to choose mediation by funding the process, so that more can experience mediation as an attractive alternative to a hearing at IPOS for resolving their disputes satisfactorily."

At the end of March 2019, will the IPOS experiment yield positive results that augur well, not only for the IP mediation scene in Singapore, but for IP mediation more generally? Will tweaks be necessary to optimize the incentive structures for the adoption of mediation in IP disputes? If the results are positive, perhaps Curt Gowdy's double-edged sword about the future of IP mediation being all ahead of it will begin to achieve more extensive, here-and-now results.