Mediation is a process of dispute resolution that involves a neutral third party, known as a mediator, who helps the two parties involved in the dispute come to an agreement. Mediation is often used in cases where the parties are unable to reach an agreement on their own. The mediator helps the parties to identify their interests and concerns, and then works with them to find a mutually acceptable solution. The first step in a mediation session is for each party to present their opening statement.
This is an opportunity for each side to explain their position and what they hope to achieve from the mediation. After the opening statements, the mediator and the parties are free to ask questions in order to gain a better understanding of each other's needs and concerns. If emotions become heated during a joint session, the mediator may decide to separate the two parties into separate rooms for private meetings or assemblies. The promise of confidentiality may encourage the parties to share new information about their interests and concerns.
For example, during meetings with both sides of a dispute over IT training, the mediator may learn that the printing company has financial difficulties. When meeting with one of the parties, they may explain that they are concerned that news of this failed training will affect their company's reputation in Chicago and beyond. In this case, it becomes clear that one party is primarily concerned with maintaining their reputation, while the other is concerned with paying their bills. Understanding how to organize meeting space is another key aspect of preparing for negotiation.
In this video, Professor Guhan Subramanian analyzes a real example of how the arrangement of seats can influence the success of a negotiator. The WIPO Mediation Regulations contain detailed provisions intended to preserve confidentiality in relation to the existence and outcome of mediation. The Center has established a recommended contractual clause for the referral of future disputes under a contract to mediation under the WIPO Mediation Rules. There are two main ways in which mediators help parties make their own decisions, which correspond to two types or models of mediation that are practiced around the world. If the parties decide to conduct their mediation in Geneva, WIPO will provide them with a free meeting room and retirement rooms (that is, at no additional cost to the administrative fee payable to the WIPO Arbitration and Mediation Center).
All differences between mediation and arbitration stem from the fact that, in mediation, the parties retain responsibility and control of the dispute and do not transfer decision-making power to the mediator. The Center offers specialized services for the mediation of intellectual property disputes, that is, disputes related to intellectual property or transactions and business relationships that involve the exploitation of intellectual property. However, it should be noted that there is no limitation on the competence of mediators appointed under the WIPO Mediation Rules to deal with different types of matters. One of the main functions of the WIPO Arbitration and Mediation Center is to help parties identify and agree on a mediator. By agreeing to submit a dispute to WIPO mediation, the parties adopt the WIPO Mediation Rules as part of their mediation agreement. The Center has also established a recommended filing agreement for referral of an existing dispute to mediation under the WIPO Mediation Rules. The mediator will finalize their opening statement by informing both parties that any settlement agreement developed during the session must be reviewed by relevant departments such as Office of General Counsel (OGC), Human Resources Manager and EEO Officer before it can be signed by both parties.
This last priority makes mediation especially appropriate when disputes occur between parties involved in an ongoing contractual relationship such as license agreements, distribution agreements or joint research and development contracts (R&D), since it provides an opportunity for finding solutions by taking into account commercial interests as well as legal rights and obligations. The WIPO Arbitration and Mediation Center (the Center) will help them identify an appropriate mediator for whichever model they choose. After receiving a request for mediation, the Center will contact both parties (or their representatives) to begin discussions on appointing a mediator (unless they have already decided who will be acting as mediator). If they have not yet been presented to the mediator, they will be asked for concise information detailing facts, evidence and any other relevant information that may help them draw conclusions. The mediation guidelines will then be reviewed and summarized by the mediator before all parties move forward with negotiations.
