As mediation becomes an increasingly popular alternative to litigation, we explore the strategic advantages it can bring to your business for disputes over intellectual property

Imagine you’re on the brink of launching a groundbreaking patent that promises to transform your industry, only to find yourself entangled in a costly and protracted legal battle over an infringement claim. The stress and financial strain would be daunting. But what if there was a more effective way to resolve these disputes—one that avoids the adversarial nature of traditional litigation and offers a collaborative path forward?

Globally and in India, mediation is increasingly recognized as a powerful alternative to conventional litigation, offering a more flexible, cost-effective, and relationship-preserving solution.

The Global Landscape: Mediation Gaining Ground

The landscape of IP disputes is undergoing a profound transformation with mediation becoming a preferred alternative to traditional litigation. This shift was notably highlighted at the EUIPO Conference 2023 in Spain, where a panellist famously stated: “There is no IP dispute that cannot be mediated. If the parties want to, they can mediate anything.” This forward-thinking perspective underscores a growing global trend towards mediation

• The WIPO Success Stories

The World Intellectual Property Organization (WIPO) has been a trailblazer in utilizing mediation to resolve complex IP disputes. For instance, the WIPO Arbitration and Mediation Centre has successfully handled over 2,800 IP-related cases, with approximately 70% resulting in settlement. The Centre’s effective mediation practices have proven that disputes, ranging from patent disagreements to trademark conflicts, can be resolved efficiently outside the courtroom.

One notable recent success was the mediation of a multi-jurisdictional patent license dispute involving a European telecom company. Mediated by the WIPO Center, this case was resolved within five months, demonstrating the effectiveness of mediation in handling complex international IP issues efficiently.

• The EUIPO Mediation Centre

The establishment of the EUIPO Mediation Centre in November 2023 is a landmark development. This centre aims to handle disputes involving trademarks, designs, and other IP rights. The success of the EUIPO conference, which catalysed this initiative, highlights a significant pivot towards mediation as a preferred method for resolving IP conflicts within the EU.

The Indian Context: Embracing Mediation

India is not far behind in this global shift. The enactment of the Mediation Act, 2023, marks a significant milestone in promoting mediation. This Act provides a structured framework for mediation, emphasizing its role in efficient and amicable dispute resolution. Key provisions under this Act include the requirement for pre-litigation mediation for IP disputes, as stipulated in Section 12A of the Commercial Courts Act, 2015.

• The Yamini Manohar Case

A pivotal development in India’s mediation journey is the Supreme Court’s ruling in Yamini Manohar v. T.K.D. Keerthi (2023). The Court addressed the issue of pre-litigation mediation, clarifying that claims for urgent interim relief must be genuine and not merely a tactic to bypass the pre-litigation mediation requirement. This ruling reinforces the importance of mediation and ensures that parties cannot evade this crucial step under the guise of seeking urgent reliefs.

• Campus Activewear Ltd v. Asian Footwear Pvt Ltd

The Delhi High Court’s decision in Campus Activewear Ltd v. Asian Footwear Pvt Ltd (2023)  showcases a successful application of mediation. In this case, mediation facilitated a resolution that was more efficient and less adversarial than traditional litigation, reflecting its practical benefits in IP disputes.

Benefits of mediation in IP disputes:

1. Flexibility and creativity. Mediation allows for creative problem-solving tailored to the specific needs of the parties involved. Unlike rigid litigation, mediation can facilitate innovative solutions, such as modified trademarks or licensing arrangements, that suit both parties.
   
   
2. Confidentiality. Given the sensitive nature of IP disputes, confidentiality is crucial. Mediation provides a private forum where parties can discuss and resolve their issues without public exposure, thereby protecting trade secrets and commercial reputation.
   
   
3. Speed and cost-effectiveness. Traditional litigation can be lengthy and expensive. Mediation is typically faster and more cost-effective, which is particularly beneficial in the fast-paced world of IP where delays can impact marketability and profitability.
   
   
4. Relationship preservation. Mediation fosters a collaborative environment, helping to preserve ongoing business relationships. By working towards a mutually acceptable solution, parties can avoid the adversarial nature of litigation and maintain positive relationships.
   
   
5. Expertise and specialization. Mediation allows for the selection of mediators with specialized expertise in relevant legal, technical, or business areas, ensuring that the

Embracing mediation in IP disputes

While mediation presents numerous benefits, several challenges need to be addressed for its successful implementation.

1. Ensuring enforceability. Enforcing mediated agreements, especially in international contexts, can be challenging. While domestic agreements are covered under the Mediation Act, 2023, international agreements require adherence to frameworks like the Singapore Convention.
   
   
2. Selecting the right mediator. The effectiveness of mediation depends on the mediator’s expertise and the chemistry between the mediator and the parties. Selecting mediators with the right skills and experience is crucial for handling complex IP disputes.
   
   
3. Balancing mediation and litigation. While mediation is a valuable tool, it is not a one-size-fits-all solution. There will be instances where litigation remains necessary. Balancing mediation with traditional litigation, where appropriate, is essential for a comprehensive dispute resolution strategy.
   
   
4. Promoting awareness and training. Greater awareness and training for legal practitioners and businesses about mediation’s benefits and processes can encourage wider adoption.
   
   
5. Adapting legal frameworks. As mediation evolves, legal frameworks will need continual updates to support and facilitate its use effectively.

Embracing the Mediation Revolution

Mediation is transforming the landscape of IP dispute resolution, offering a flexible, confidential, and efficient alternative to traditional litigation..

Embracing mediation as a primary dispute resolution mechanism will be crucial for businesses and legal practitioners. By leveraging its benefits and addressing its challenges, we can achieve more effective and amicable resolutions to IP disputes, fostering a more innovative and collaborative environment.