IP mediation

What exactly is 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).  

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What are the main benefits of mediation?

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.

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What is the success rate of mediation?

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).  

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Who is the mediator?

The mediator is 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 resolved. 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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Is the qualifications of the mediator important?

The person of the mediator is absolutely crucial in the mediation process. The decision of his knowledge, experience, her ability to deal with people and also the ability of empathy, but at the same time maintaining an objective view of the problem of the parties. 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.

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Who is 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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How does the mediator proceed?

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.

 

What is the importance of mediation in the field of intellectual property (IP) protection?

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. There are a number of problematic areas where these intellectual property, including know-how and trade secrets, are not sufficiently effectively protected and their commercial potential, especially patents, can be irreparably lost. Alternative Dispute Resolution (ADR) methods are insufficiently used in the Czech Republic compared to abroad. For this reason, the IPO is actively looking for ways to integrate the use of ADR methods into processes related to the protection of intellectual (and especially industrial) property, both in proceedings before the IPO and in subsequent proceedings.

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So when can I use the IP mediator?

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. To this end, it trains registered IP mediators and maintains their lists, as well as prepares IP specialists for mediator examinations.

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What disputes can be resolved through IP mediation?

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.

 

What about mediation with limitation periods?

In the event that 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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  © JUDr. David Karabec, 2021

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