Mediation in the field of IP

What is mediation?

Mediation (from the Latin mediare = "to be in the middle") is a method of peaceful resolution of disputes and conflicts, the goal of which is an agreement. It is applied in and outside the law, and it includes not only legal, but also psychological or social specifics. In the Czech legal system, mediation is enshrined in Act No. 202/2012 Coll., on mediation and on amendments to certain acts (Mediation Act).

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What are the main advantages of mediation?

The main advantages of mediation include the fact that:

• It leaves the participants in control of the process of resolving their conflict and the shape of the final outcome;

• It is time- and cost-effective, as it takes place without long waiting periods 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 between the participants.

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What is the success rate of mediation?

The success rate of resolving conflict cases is very high, according to world statistics, around 75%. Mediation is successfully used in all developed countries in Europe as well as the USA and Australia, not only to resolve family disputes (family mediation), but also to resolve commercial, judicial, banking or even government disputes arising from contracts (United Kingdom).

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Who is a mediator, anyway?

A mediator is a third party who is not interested in the outcome of the dispute and only assists the parties in finding a mutually acceptable solution without deciding the dispute. However, the mediator leads the mediation process and has a leading role in this process, but is not a judge or arbitrator, does not look for the culprit in the dispute, and is not supposed to act as an advisor (this role is played by the parties' lawyers).

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Is the qualification of a mediator important?

The mediator's personality is absolutely essential in the mediation process. His/her knowledge, experience, ability to deal with people and also the ability to empathize, but at the same time maintaining an objective view of the parties' problem are decisive. The role of a mediator according to 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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Kdo je to zapsaný mediátor?

The Mediation Act establishes the institution of a registered mediator, and when setting the parameters of the mediator exam, the multidisciplinary nature of the mediator's role was taken into account and the fact that effective management of the mediation process requires not only the necessary theoretical knowledge, but also practical skills. The exam is therefore designed to test not only the candidate's theoretical knowledge in the field of law, mediation theory, communication and social psychology, but also focuses on the candidate's practical skills, i.e. the ability to competently manage the mediation process and effectively assist the parties in conflict in finding an agreement.

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How does the mediator proceed?

According to the Mediation Act, a mediator is obliged to conduct mediation personally, independently, impartially and with due professional care; to respect the opinions of the parties to the conflict and to create 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 legal regulation in relation to a conflict in which he or she conducts or has conducted mediation or has taken steps to prepare for mediation, even if he or she is otherwise authorised to provide them. The expression of the mediator's legal opinion during mediation on the matter of the parties to the conflict or any of its sub-issues is not considered a legal service. A mediator is authorised to conduct mediation or similar activities only under the conditions set out in this Act, including the obligation of confidentiality.

 

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

As regards 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 field of research, development and innovation. There are a number of problematic areas where these intellectual property objects, including know-how and trade secrets, are not sufficiently protected and irreplaceable losses of their commercial potential, especially patents, may occur. Alternative dispute resolution (ADR) methods are insufficiently used in the Czech Republic compared to abroad. For this reason, the IPO is actively seeking ways to incorporate 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 an IP mediator?

Disputes over intellectual property rights can be resolved by ADR methods at any stage of the dispute, i.e. in the dispute between the parties, in the pre-litigation phase or in an ongoing lawsuit, while mediation can also be ordered by the court. The Specialized IP Mediation Center Prague, a registered institute, therefore aims to reduce the number of disputes in the field of intellectual property protection at all these stages 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 mediators in the field of IP and maintains their lists, and also prepares IP specialists for mediator exams.

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What disputes can be resolved through IP mediation?

Specifically, in the field of intellectual property protection, it involves the settlement of highly professional disagreements and disputes that arise in relation to the creation, application and evaluation of intellectual property objects, especially in matters of inventions, industrial designs, utility models, improvement proposals, production and operational experience (know-how), unfair competition, trademarks, designations of origin of goods, computer programs and other objects of copyright protection and related rights. The fundamental difference from ordinary court proceedings is the confidentiality (obligation of confidentiality) and non-publicity of the mediation proceedings.

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What about mediation with statutes of limitations?

In the case of mediation conducted in accordance with Act No. 202/2012 Coll., on mediation, the limitation periods are suspended, which can be significant in cases of disputes in the field of intellectual property protection, where a judicial solution may not bring the expected result, the interpretation of the law in the given matter is ambiguous, there is a risk of high costs of litigation, there is a time or economic pressure on the parties, or the dispute is too complex. In the case of intellectual property protection, all of these aspects come into consideration, for which mediation is most suitable, and it is necessary to emphasize once again the non-publicity of the proceedings and the emphasis on privacy, because in these matters, especially patent matters, their publication may lead to an irreplaceable loss of their commercial potential.

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 © JUDr. David Karabec, 2021

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