Book review- Mediation: Creating Value in International Intellectual Property Disputes

Readers will no doubt agree that IP disputes can be highly complex, often involving teams of experts to keep a close eye on the vast range of legal, procedural, and jurisdictional issues, requiring considerable resources and costs. So, it’s no wonder that there is an increasing interest in utilising mediation to overcome these challenges, help manage risk, and obtain global solutions.

Whilst Mediation seems to have previously been somewhat overlooked in the arsenal of IP dispute resolution, this book makes a compelling case for the problem-solving approach that overcomes challenges of court procedure and legal application, to provide parties with an effective way to create value in IP disputes.

This book, edited by Théophile Margellos, Sophia Bonne, Gordon Humphreys, Sven Stürmann, argues that one of the many positives of mediation is the possibility of a mutually beneficial outcome. Whereas traditional forms of ADR tend to provide a winner-takes-all approach, mediation can foster understanding between parties, enabling them to reach common ground which allows new opportunities to flourish.

In the forward, Antόnio Campinos (Executive Director EUIPO) underpins the book with support for mediation, particularly for SMEs, where the traditional court system may be perceived as expensive, rule-bound, intimidating and time-consuming. He highlights the importance of a book that provides detailed information of mediation in IP: “This book fills a gap in our knowledge.”

Contributors to the book include internationally recognised mediators and IP experts [including our very own Kat Eleonora Rosati], offering an in-depth discussion on how mediation mitigates difficulties in IP areas such as the following: disputes on trademarks, designs, patents, copyrights and other IP rights; allegations of breach of contract; licences and transfers; and R&D cooperation agreements.

The text is presented in two extensive chapters, a conclusion and an appendix which includes a handy copy of the European Directive on Mediation and European Code of Conduct for Mediators.

The first chapter considers the different tools available in the resolution of IP disputes, discusses the advantages of choosing mediation, and explores specific areas of IP in which mediation could be utilised. The chapter includes an overview of the different IP mediation services that are available. After considering the different ways to tackle a dispute, looking specifically at key areas of IP, this section concludes that few disputes would not benefit in some way from the mediation process. This is because, it argues, mediation can provide flexible and commercial solutions.

Chapter two focuses on settling IP disputes using mediation. It begins by emphasising the duty of confidentiality and cultural considerations within the mediation process. It then takes the reader through the mediation process; of selecting a mediator and the signing of the mediation agreement in which both parties agree to work together to achieve a common goal. This chapter offers practical tips for the reader about the mediation process, as well as what to consider when drafting the final agreement.

Cats with mutually-beneficial-mindsets
Photo: Gloson Teh

The book concludes by quoting Einstein “in the middle of difficulty lies opportunity.” Ultimately, it argues that settling through mediation creates multiple opportunities through enhanced understanding, with the aim of reaching a common goal, nurturing commercial relationships and adopting a mutually-beneficial, problem-solving mindset.

This book would appeal to lawyers, both in-house and outside counsels, IP professionals, rights holders and licensees interested in learning about the possibilities that mediation offers and how they can best avail themselves of those opportunities.

You can purchase the book from Wolters Kluwer here.
Hardbound: £130.00
ISBN: 9789041167361