When relationships are strained and communication is poor, a neutral third party can be a great asset in helping to facilitate understanding and reach an agreement. Mediation offers many advantages, and is often required by courts before a contested hearing can take place. Even if it seems that there is no possible agreement, it is still worth trying as there are usually some issues that the parties can come to an understanding on. Mediation can be used at any stage of a dispute, from the first step after negotiations have failed, to during litigation or arbitration when the parties wish to explore the possibility of an agreement.
In Ontario, all civil lawsuits managed by cases, except family cases, are referred to mediation unless a court order exempts them. At the first meeting, the mediator will discuss what additional documentation should be provided and if expert assistance is needed. Court-ordered mediation fees include one hour of preparation and a three-hour mediation session. If mediation is not mandatory, it may still be appropriate when the individuals or companies with the disagreement have decided they want to try to reach an agreement without court intervention.
The WIPO Mediation Regulations contain provisions intended to preserve confidentiality in relation to the existence and outcome of mediation. The main difference between mediation and arbitration is that in mediation, the parties retain responsibility and control of the dispute and do not transfer decision-making power to the mediator. There are two main ways in which mediators help parties make their own decision, which correspond to two types or models of mediation that are practiced around the world. The WIPO Arbitration and Mediation Center helps parties identify and agree on a mediator.
This makes mediation especially appropriate when the dispute occurs between parties to an ongoing contractual relationship, such as a license, distribution agreement or joint research and development contract (R&D), since it provides an opportunity to find a solution by referring also to commercial interests and not just legal rights and obligations. Mediation usually takes place early in the prosecution process, with many mediations completed in a single meeting. After receiving the request for mediation, the Center will contact the parties (or their representatives) to begin discussions on appointing a mediator (unless they have already chosen one). The Center has also established a recommended filing agreement for referring an existing dispute to mediation under the WIPO Mediation Rules.
If the parties decide to conduct their mediation in Geneva, WIPO will provide them with a free meeting room and retirement rooms at no additional cost. The mediator appointed under the WIPO Mediation Rules is competent to deal with all aspects of any dispute. It is essential that both parties fully agree on who will be their mediator as trust is key for successful mediation. All differences between mediation and arbitration stem from this fact that in mediation, parties retain control of the dispute and do not transfer decision-making power to the mediator.
