“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln
Abstract:
India, the land of multilingual as well as cultural diversity has been ever growing and changing with the changing world. People in India, try their best to meet the pace of this ever changing and fast paced world, both nationally and internationally. With the world changing its horizons, distance and border are just mere words in terms of multilateral trade and business connectivity. The world is opting for a “fast fashion” culture i.e. everything to be done fast and less time consuming so that their time could be invested better on other engagements too. Every human being on this planet is on the internet today, and with this advanced technology, the occurrence of disputes as well as its settlement has become advanced. If we talk about the Intellectual Property sector in particular, disputes related to Domain name, Copyright issue, Patenting issue, Infringement, Trademark , Defamatory writings, and frauds etc. have been at peak.
Alternate Dispute Resolution (ADR) techniques and Mediation in particular can help resolve these issues effectively with the party’s convenience. Mediation is the need of the hour as Intellectual property is among companies, vital requirements now, and in order to run that part efficiently, business organizations often collaborate with other business entities, across nations or across states within the nations, which commonly face jurisdictional issues as to where the matter should be entertained and in which court, as some dealings might be online.
Introduction:
Indian laws and Judiciary are, no doubt, acknowledged worldwide in being efficient enough, though they still have their own sets of merits and demerits. The Judiciary of a country tries its best to have a mechanism which is trustworthy and efficient though it has been witnessed that court proceedings are often time consuming due to long and vast procedural fulfilments and it sometimes happens that the desired decision the parties were long awaiting for are not delivered which gradually leads to disappointment for the loss of time as well as money as stated above in the quote by Abraham Lincoln.
This is where ADR techniques come into picture. ADR is nothing but Alternate Dispute Resolution methods rather than opting for litigation. ADR methods mainly include, Arbitration, Negotiation, Mediation and Conciliation. All of these methods are majorly less time consuming, devoid of procedural formalities, run on party’s terms and their satisfaction.
Mediation in Intellectual Property Matters:
Mediation is one such ADR method which has risen above all the other methods, mentioned above. In a mediation process, both the parties sit together with an unbiased neutral third party who acts as a mediator, to settle things through mediating solutions and putting forth the interests of both the parties. As the parties sit face to face it is easier to have a talk and know opinions, and to reach a conclusion through conclusion. The parties may represent themselves or may resort to a legal person. This procedure is fully party driven, so there is no force or pressure on parties to participate, the parties voluntarily agree to settle the dispute through mediation, by the recommendation of court before going for litigation. In many of the cases, the Supreme Court has also mentioned that it has its own shortcomings as well and the parties should only approach the court when all the other alternatives have been exhausted.
Businesses involving IPR matters do not always want to win over the other party as in order to sustain in the market one needs to maintain its contacts and connections, and they want peaceful cooperation, for future dealings too. This method allows them to have the dealings as per their convenience and terms, with an approach where privacy is maintained.
The World Intellectual Property Organization (WIPO) is an organization who is supporting mediation whenever there is a dispute related to intellectual property.
Examples
CASE 1: Pharma Dispute Mediation
A European University which holds, pharma licencing across globe, discussed on the licencing of a drug with a pharmaceuticals company, regarding its patenting, however even after 3 years of discussing, the parties could not come to a conclusion and decided to consult WIPO, for the mediation, and finally through discussion, came to a conclusion.
CASE 2: Telecom Licence Dispute
A European company made a licencing agreement with the United States company for the usage of that telecom technology, and the terms of the licence stated that the licensee could not go beyond the licence terms for the usage of that technology, however after 4 years of the contract the other company started using that technology for external use and thus the European company alleged to have been liable. Through mediation procedure, both the parties came to an agreement and the dispute got resolved within 5 months.
Advantages of Mediation in IPR Disputes:
Convenient Jurisdiction
International IPR disputes involve laws of different countries which might complicate the decision leading to unsatisfactory results as laws of one country may neglect or do not consider the laws of another country, making it difficult to connect and continue a peaceful business in another country. Mediation on the other hand would escape all the jurisdictional complexities and avoid multiplicity of litigation in different nations; rather, everything would be sorted out in a single procedure.
2. Autonomy of the Parties
Mediation just like any other ADR method is purely and entirely based on party autonomy i.e. whatever happens, happens at the discretion of parties. Due to its private nature of dispute resolution, the parties could freely choose, where they want their proceedings to be done in a procedural manner, or to establish their own set of rules, applicable to that particular case, and to also select the place and language of the proceeding.
3. The key is Neutrality
The mediator is a third party who is involved in putting forward the parties demand in a better way of communication. This mediator is devoid of any biases towards any of the parties which could have happened in the case of litigation in the party’s home country, which would have supported the party of their own country.
4. Elimination of Appeal and decreasing overload of cases in courts
Unlike any litigation proceeding, ADR awards or decisions have no option for further appeal, as the process itself is agreed upon by parties, so it leaves no scope for disappointment as they voluntarily proceed with it and most of the times, both the parties end up with a win-win situation.
5. Privacy
These proceedings are carried out in a room setup wherein only parties and a mediator are allowed and no other person could hear the dispute.
Shortcomings:
Just like any other dispute resolution mechanism, meditation has its own set of disadvantages as its award, unlike a court’s decree, could not become a precedent for the public. For example, there is a matter of copyright wherein, party A used the music of party B without any permission or licencing, they opt for mediation and talk it out and finally come to a settlement which would be binding only to the parties, subject to that particular case, and if in near future any other party faces the similar issue, the same remedy cannot be provided, their award would vary from the award given in previous matter.
Secondly, mediation works in a consensual manner, i.e. without the consent of both the parties, the mediation cannot take place, neither any party could be forced to enter into a mediation settlement, so if any one of the parties is uncooperative, mediation cannot be carried forward.
Mediation, though it is a party driven dispute settlement mechanism, needs certain compulsory rules and regulations, in order to have a much more fruitful outcome. The mediation bill is still pending before the parliament which soon needs to be turned into an act. Organizations like Niti Ayog, have fully supported mediation, as it is the need of the hour.
Conclusion:
Both IPR and Mediation are one of the most growing and developing sectors in their particular field, and are the need of the hour. IPR is ever growing but most vulnerable too, anyone, sitting anywhere, could breach, copy or infringe and of the copyright, trademark, patenting rights, of a party, and the original owner, instead waiting for years for a remedy want it to settle quickly, and furthermore, the complexity of the IPR cases are such, which once communicated thoroughly, could reach a settlement, without the tiring court sessions. Mediation fits perfect to this area, as specialized mediators, could play a role, to actively listen to the parties, and reach at a conclusion, as in most of the IPR cases, it just needs to be proved, whether, other party has infringed the copyright or not, which is easier to prove, given the facts by both the parties. Mediation has a much wider scope in the coming years, and it's the future of dispute settlement, in a peaceful and less time consuming manner.
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