Question 1

What is Mediation?

Accepted Answer

Mediation is an alternative dispute resolution proceeding in the framework of which parties in dispute attempt to achieve mutual full and final settlement and release of all claims pending between them with the assistance, guidance and direction of a qualified professional mediator.

Question 2

Is Mediation mandatory?

Accepted Answer

Mediation is in essence a voluntary proceeding.  Each of the parties to any Mediation proceedings are required to consent to the conduct and applicable terms of the proceedings and may at any time terminate the Mediation in their full and exclusive discretion.  The Mediator has no authority to resolve the dispute or to deliver any binding decisions or judgment with respect to the dispute.  The dispute may only be resolved by a voluntary free-will agreement of all parties to the Mediation.

Question 3

What are the benefits of the Mediation process?

Accepted Answer

Mediation, as a platform for alternative dispute resolution, allows the following distinct benefits for the participants: 
(1) Cost & Time Efficiency &#8211; Mediation tends to be substantially more cost and time effective than traditional dispute resolution platforms such as Court proceedings and arbitration; 
and (2) Confidentiality &#8211; Mediation is subject to strict confidentiality terms which apply to all participants including the parties, their representatives and the Mediator himself and are expressly set in a Mediation Agreement executed by the parties and the Mediator before commencement of the Mediation. The strict confidentiality of the Mediation means that all documents presented and anything otherwise communicated in the framework of the Mediation may not be disclosed and/or used in any way and in any time outside the Mediation proceedings, including in any future Court or arbitration proceedings in the event the Mediation is unsuccessful; 
and (3) Flexibility & Creativity  &#8211; Mediation is not subject to any rules of civil procedure or other procedural limitations, which allows the Mediator to conduct the proceedings in any way which he may deem productive to promote the settlement of the dispute (for example &#8211; by conducting &#8220;private&#8221; meetings separately with each party).  
In addition, being an agreement-based dispute resolution tool, the terms of settlement of the dispute are not confined to the scope of remedies and awards available under substantive law and the parties may, with the direction of the Mediator, agree on creative solutions (such as an agreement for future business cooperation to the benefit of both parties) which are not available or attainable under the constraints of court or arbitration proceedings.

Question 4

How can Mediation save me money in the long term?

Accepted Answer

Other dispute resolution mechanisms such as Court or arbitration proceedings tend to be far more costly and lengthy than Mediation.  
Court proceedings may take years through conclusion and even then, any judgment delivered is usually subject to further appeals before higher instances, whereas Mediation may resolve the dispute within weeks if not days.  
Furthermore, Mediation does not entail complex, extensive and costly evidence deposition, witness interrogation or summations procedures, as is the case with court or arbitration procedures. In addition, the confidentiality of the Mediation (as opposed to Court proceedings) prevents any proliferation of information of the dispute which may potentially cause injury to the reputation or good-will of the parties involved.  The voluntary character of Mediation also allows each party in any time to terminate the Mediation instantly without consequences &#8211; an option which is not available under Court or arbitration proceedings.

Question 5

How does the Mediation process work?

Accepted Answer

The Mediation process, generally speaking, comprises the following stages: 
(1) A preliminary introductory meeting in which the Mediator explains the process, nature and rules of the mediation to the parties and furnishes the parties with a draft Mediation Agreement for their review and comments; 
(2) Execution by the parties and Mediator of a Mediation Agreement; 
(3) Conducting the Mediation process in 2 hour blocks (to avoid attrition) spread over days or weeks, in joint meetings with all parties and/or separate individual meetings with each party, as the Mediator deems most constructive; 
(4) Drafting by the Mediator of a Settlement and Release Agreement in conformity with the principles discussed with the parties and consequently discussing and introducing amendments to the draft pursuant to the Parties&#8217; respective comments to same until a final draft is agreed upon; 
(5) Execution by the parties of the final Settlement & Release Agreement; 
(6) (Optional) Joint Application to a qualified Court to award the Settlement & Release Agreement a status of a Court Judgment.

Question 6

Why do I need experienced mediators/attorneys specialized in IP?

Accepted Answer

Generally speaking, it is highly recommended that Mediation will be conducted by an experienced attorney who is also a qualified Mediator, thereby allowing proper consideration of the substantive legal framework and analysis of the factual background of the dispute by tools available to attorneys as well as capitalizing on all the full advantages available under Mediation as are best known to qualified Mediators, for the benefit of the parties.  Even more so where the subject matter of the dispute in Mediation is IP related &#8211; a unique legal field which requires specific know-how and experience to effectively and professionally understand the details of the dispute as well as to properly and accurately tailor, propose and draft settlement terms which are compatible with and take under consideration the laws and practices specifically applicable to IP.

Practice Areas

Mediation

Our Experts

FAQs

Relevant Articles