MEDIATION

Mediation (from the Latin mediare = "to be in the middle") is a way of peaceful settlement of disputes and conflicts, the aim of which is agreement. It is applied in law and beyond, it includes not only legal, but always psychological or social specifics. In the Czech legal system, mediation is enshrined in Act No. 202/2012 Coll., On Mediation and on the Amendment of Certain Acts (the Mediation Act). Mediation is thus a method of rapid and cultured out-of-court settlement of conflicts with the assistance of a neutral third party, which leads the parties to the dispute to reach a mutually acceptable agreement. It is an informal conflict resolution process in which both parties are present voluntarily. Its goal is a clearly formulated, comprehensible and practically feasible agreement, in the form of which all participants in the mediation process participate.  

 

The main advantages of mediation include the fact that:

• It leaves participants control over the process of resolving their conflict and the shape of the end result;

• It is time-saving and economical because it takes place without long waiting times and unnecessary financial costs;

• It reduces the tension with which the participants come to the mediator and does not create an atmosphere of tension, but space for possible future cooperation;

• It keeps confidential information among those involved.

 

The success rate in resolving conflict cases is very high, according to world statistics about 75%. Mediation is successfully used in all developed countries of Europe and the USA and Australia not only to resolve family disputes (family mediation), but also to resolve commercial, judicial, banking or even government disputes under contracts (United Kingdom). It is therefore necessary to ensure that mediation activities are carried out by persons who are adequately trained and can thus become adequate partners for the judges deciding on this agenda, who would then only approve the mediation agreement. According to the law, mediation is defined as a procedure for resolving a conflict with the participation of one or more registered mediators who support communication between the persons involved in the conflict so as to help them reach a friendly solution to their conflict by concluding a mediation agreement.

 

The person of the registered mediator, his knowledge, experience, his ability to deal with people and also his ability to empathize, but at the same time maintaining an objective view of the problem of the parties, is absolutely crucial in the mediation process. The role of a mediator under the Mediation Act is complex and places specific and relatively high demands on the professional competence of persons performing the function of a registered mediator. The Mediation Act introduces the institute of a registered mediator, while taking into account the multidisciplinary nature of the mediator's role and taking into account the fact that effective management of the mediation process requires not only the necessary theoretical knowledge but especially practical skills. The exam is therefore designed to test not only the candidate's theoretical knowledge of law, mediation theory, communication and social psychology, but also focuses on the candidate's practical skills, ie the ability to competently manage the mediation process and effectively assist the parties to the conflict in finding an agreement.

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According to the Mediation Act, the mediator is obliged to conduct mediation in person, independently, impartially and with due professional care; to respect the views of the parties to the conflict and to create the conditions for their mutual communication and for finding a solution that takes into account the interests of both parties. A mediator may not provide legal services under another law regarding a conflict in which he or she is leading or has taken steps to prepare for mediation, even if he or she is otherwise authorized to provide them. The expression of a mediator's legal opinion during mediation on a matter of the parties to the conflict or one of its partial issues is not considered a legal service. The mediator is entitled to perform mediation or similar activities only under the conditions stipulated by this Act, including the duty of confidentiality. The mediator is therefore the third impartial person who has no interest in the outcome of the dispute, but only assists the parties in finding a mutually acceptable solution without a dispute being decided. However, the mediator leads the mediation process, he has a leading role in this process, but he is not a judge, an arbitrator, he is not looking for the culprit of the dispute, he does not act as an adviser (this role is held by the parties' lawyers).

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With regard to the protection of intellectual property, awareness of the need to protect intellectual property is weak in the Czech Republic and insufficient attention is paid to this issue in the area of research, development and innovation. One of the goals of government policy in the area of the Innovation Strategy of the Czech Republic 2019-2030 is therefore to increase awareness of intellectual property protection in the production and application spheres, already in the research phase and to increase the use of intellectual property protection, especially by small and medium enterprises. However, it is in this area that there are a number of problematic areas, including dispute resolution and related protection of know-how and trade secrets, where these intellectual property items are not protected effectively enough and their commercial potential can be irreparably lost. Alternative Dispute Resolution (ADR) methods are insufficiently used in the Czech Republic compared to abroad.

 

Mediation is recognized abroad as an important method of alternative dispute resolution outside standard court proceedings. It is therefore desirable to ensure that disputes, especially in the field of IP, are settled out of court as a matter of priority and that judicial settlement in the standard way is only the last possible settlement of a dispute between the parties. Nevertheless, the benefits of mediation in disputes, especially in the field of intellectual property protection, are not sufficiently known among the public and therefore these ADR tools are very little used. Related to this is the lack of mediators professionally trained to conduct mediation disputes in this specific area of law. At the same time, the professional and professional preconditions of the mediator can be an important help for the parties to the dispute to resolve their dispute in the field of intellectual property protection.

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Disputes for intellectual property rights can be resolved by ADR methods at any stage of the dispute, ie in litigation between the parties, in the pre-litigation phase or in an ongoing litigation, and mediation may also be ordered by a court. Specialized IP mediation center  Prague, a registered institute, therefore aims to reduce the number of disputes in the field of intellectual property protection in all these phases and thus protect the commercial potential of know-how and technical solutions (especially patents) of small and medium-sized enterprises. In the field of intellectual property protection in particular, the settlement of highly professional disagreements and disputes arising in relation to the creation, application and evaluation of intellectual property items, especially in matters of inventions, industrial designs, utility models, improvement designs, production and operational experience how), unfair competition, trademarks, designations of origin, computer programs and other subject matter of copyright and related rights.

 

The main difference from ordinary court proceedings is the confidentiality (duty of confidentiality) and the non-publicity of the mediation proceedings. It is the exclusion of the public and the concluded contract on the conduct of mediation with a confidentiality clause that provide guarantees for the protection of the knowledge potential of small and medium-sized enterprises. In the event that the mediation is conducted in accordance with Act No. 202/2012 Coll. there is an ambiguous interpretation of the law, there is a high cost of litigation, there is a time or economic pressure of the parties or the dispute is too complex. In the case of intellectual property protection, all these aspects are considered for which mediation is most appropriate, while re-emphasizing non-publicity and the emphasis on privacy need to be re-emphasized, as in these matters, especially patents, their publication may result in irreparable loss of commercial potential.

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In 2019, the European Union Intellectual Property Office (EUIPO) published on its website https://euipo.europa.eu a study carried out in collaboration with the European Patent Office (EPO) and found that the overall benefits of the rights-intensive industry intellectual property for the EU economy accounts for around 42% of GDP (€ 5.7 trillion) and 28% of jobs. Copyright and industrial property law (including know-how and trade secrets), as well as international treaties and European Union directives, are an effective means of counterfeiting, piracy and infringement of intellectual property rights. However, it is necessary to be able to use this system of intellectual property protection at least as successfully as other economically developed countries. At the same time, this system prevents distortions of competition, helps to create a fair business environment and thus promotes innovation, investment and competitiveness. In this context, the protection of intellectual property is perceived as a basic precondition for the success of any economy and effective dispute resolution through mediation in this area can significantly help the Czech Republic to become one of Europe's innovation leaders and become a country of technological future.

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  © JUDr. David Karabec, 2021

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