• It provides the opportunity for catharsis. For many parties, a mediation will be the only chance they get to have their say, short of trial; and
• Mediation gives parties to IP disputes a particularly good opportunity to look at matters in a practical, problem-solving way. Leading UK IP mediator Jon Lang recommends that samples be brought along to mediations, and says that:
“Many cases have been settled with parties looking over products bearing an allegedly infringing trade mark, or which are said to infringe another’s design right, with parties suggesting changes that could be made to resolve the dispute”
(in How to Master Commercial Mediation, Richbell et al, Bloomsbury, 2015, at p207)
How we in New Zealand can improve in this field
Worldwide, more and more IP disputes are being resolved using ADR. IP showed the highest growth in mediation use of any specialty area in the US between 1997 and 2011 in Professor Tom Stipanowich’s US Fortune 1000 survey, published in the Harvard Negotiation Law Review. In the UK, Herbert Smith Freehills has reported a growth in international IP arbitration (see: http://hsfnotes.com/arbitration/2014/06/06/wipo-spring-cleans-its-arbitration-rules/) and mediation services (see: http://www.wipo.int/amc/en/center/caseload.html). WIPO has also been partnering with intellectual property offices worldwide to promote ADR schemes.
Here in New Zealand we may not be not so strong on this. Whilst ADR is well-used in many fields of dispute, anecdotal evidence, and informal surveys, would suggest that it is not so well-used in IP disputes. Part of the problem here may be attitudinal. I have heard local IP litigators say things like: “but we need our precedents”, “why mediate when I can negotiate?”, and “I would only mediate if I am against a lay-litigant”. To the precedent point, I would note that ADR has been flourishing in construction, insurance and general commercial litigation for decades, but the law reports are still full of cases in these fields. The truly knotty cases can, will, and often should, be resolved by IPONZ Commissioners and the Courts. The other points I hope are answered above.
We also have infrastructure issues here. In distinction to many jurisdictions (including the UK and Australia) we do not have a mediation scheme attached to IPONZ. Until very recently (and more on this in a moment), there has been no ready way, beyond word of mouth, to find IP ADR practitioners.
What to do? The converted should proselytize if folk will be kind enough to listen/read. IP litigators should take the plunge, or take it more often (your clients will thank you for it). IPONZ has given some consideration to a mediation referral option, and it would be tremendous to see that become a reality. And the Arbitrators’ and Mediators’ Institute of New Zealand has now established an IP Dispute Resolvers List, which can be accessed via its website.
One of the wonderful things about New Zealand is that when we do commit to things, we can do so quickly, and in a nimble, creative way. I would suggest that we can and should commit to improving the use of ADR in IP here. Who really wants to be stultified by a dead hand?