With the help of a mediator, the parties who are involved in a conflict should create their own solution. Mediation is generally voluntary. As a result, mediation may not be appropriate in all circumstances. Mediation is not the best method of dispute resolution unless both parties really want to make the process work and are willing to be reasonable both throughout the process and in coming to a final agreement.
Mediation is often used as a method of dispute resolution in situations where the parties in a disagreement want to, or will be forced to, keep working together or to maintain an ongoing relationship even despite the disagreement.
This can occur in situations where a couple with kids is divorcing, for example, or in situations where business partners are involved in a conflict. Because mediation requires compromise, relationships can be preserved and there will be no winners and losers like in litigation. It is not, however, appropriate if either spouse in a divorce is hiding financial information, is abusive, or is otherwise unwilling or unable to come to a compromise. To determine if mediation is an appropriate method of dispute resolution under the circumstances of your dispute, contact an Orange County Business Mediation lawyer.
This means that if at the end of the mediation if a resolution has not been achieved the offers and concessions made to help to resolve the issues are set aside leaving your free to use the court process. Even if a resolution has not been found mediation still has a benefit. Parties can agree about exactly what it is they are in dispute about.
By narrowing the issues between the parties legal costs and court time can be saved. Why use Mediation? Find out if mediation can help in your dispute.
Contact us. Mediation is quick. Mediation starts with an agreement to mediate. Mediation improves communication with the other party. Mediations result in solutions that both parties find acceptable. Mediation is cost effective. The WIPO Mediation Rules Article 25 provide for the costs of the mediation the administration fee of the Center, the mediator's fees and all other expenses of the mediation to be borne in equal shares by the parties.
The parties are free to agree to change this allocation of costs. For those parties for which mediation is a new procedure and which may wonder what benefits mediation offers, two factors can usefully be considered:. The Center has established a recommended contract clause for the reference of future disputes under a contract to mediation under the WIPO Mediation Rules. The Center has also established a recommended submission agreement for the reference of an existing dispute to mediation under the WIPO Mediation Rules.
The Center organizes workshops for mediators, as well as conferences on various aspects of the resolution of intellectual property disputes. IP and Business Universities Judiciaries. What Does It Cost? Who Pays the Costs? Why Try It? In concrete terms, this means two things principally: In an arbitration, the outcome is determined in accordance with an objective standard, the applicable law.
In a mediation, any outcome is determined by the will of the parties. Thus, in deciding upon an outcome, the parties can take into account a broader range of standards, most notably their respective business interests.
Thus, it is often said that mediation is an interest-based procedure, whereas arbitration is a rights-based procedure. Taking into account business interests also means that the parties can decide the outcome by reference to their future relationship, rather than the result being determined only by reference to their past conduct. In an arbitration, a party's task is to convince the arbitral tribunal of its case. It addresses its arguments to the tribunal and not to the other side.
In a mediation, since the outcome must be accepted by both parties and is not decided by the mediator, a party's task is to convince, or to negotiate with, the other side. It addresses the other side and not the mediator, even though the mediator may be the conduit for communications from one side to the other. On the other hand, mediation is an attractive alternative where any of the following are important priorities of either or both of the parties: minimizing the cost-exposure entailed in settling the dispute; the maintenance of control over the dispute-settlement process; a speedy settlement; the maintenance of confidentiality concerning the dispute; or the preservation or development of an underlying business relationship between the parties to the dispute.
Getting to the Table: The Agreement to Mediate The starting point of a mediation is the agreement of the parties to submit a dispute to mediation. Starting the Mediation Once a dispute has occurred and the parties have agreed to submit it to mediation, the process is commenced by one of the parties sending to the Center a Request for Mediation.
The Appointment of the Mediator Following receipt of the Request for Mediation, the Center will contact the parties or their representatives to commence discussions on the appointment of the mediator unless the parties have already decided who the mediator will be. Initial Contacts Between the Mediator and the Parties Following appointment, the mediator will conduct a series of initial discussions with the parties, which typically will take place by telephone.
The First Meeting Between the Mediator and the Parties At the first meeting, the mediator will establish with the parties the ground rules that are to be followed in the process. In particular, the mediator will discuss with, and obtain the agreement of the parties on, the question whether all meetings between the mediator and the parties will take place with both parties present, or whether the mediator may, at various times, hold separate meetings caucuses with each party alone; and ensure that the parties understand the rules on confidentiality set out in the WIPO Mediation Rules.
Subsequent Meetings Depending on the issues involved in the dispute and their complexity, as well as on the economic importance of the dispute and the distance that separates the parties' respective positions in relation to the dispute, the mediation may involve meetings held on only one day, across several days or over a longer period of time. The stages involved in the meetings held after the first meeting between the mediator and the parties would, where the mediator is playing a facilitative role, normally involve the following steps: the gathering of information concerning the dispute and the identification of the issues involved; the exploration of the respective interests of the parties underlying the positions that they maintain in respect of the dispute; the development of options that might satisfy the respective interests of the parties; the evaluation of the options that exist for settling the dispute in the light of the parties' respective interests and each party's alternatives to settlement in accordance with one of the options; and the conclusion of a settlement and the recording of the settlement in an agreement.
Parties' Private Consultations Throughout the process of the mediation, naturally each party will wish to undertake, at various stages, private consultations with its advisors and experts for the purposes of discussing various aspects of the mediation or of evaluating options. The parties should consider at least the following matters in deciding whom to appoint as mediator: what role do they want the mediator to play; do they want the mediator to provide a neutral evaluation of their dispute, or do they want the mediator to act as facilitator of their negotiations by assisting them in identifying the issues, exploring their respective underlying interests and developing and evaluating possible options for settlement?
This will depend in part on whether they wish the mediator to play an evaluative or a facilitative role. In particularly complex disputes involving very specialized and highly technical subject matter, the parties may wish to consider having both a subject-matter and a process specialist as co-mediators.
Similarly, where the parties have very different cultural and linguistic backgrounds, they may wish to envisage two co-mediators. Two sets of fees must be paid for a mediation. As mentioned above, these are negotiated and fixed at the time of the appointment of the mediator.
They are usually calculated on a hourly or daily basis at a rate which takes into account the circumstances of the dispute, such as the complexity of the dispute and its economic importance, as well as the experience of the mediator.
For those parties for which mediation is a new procedure and which may wonder what benefits mediation offers, two factors can usefully be considered: Where mediation has been used, it enjoys remarkably high rates of success, given its non-binding nature.
Indeed, on one view, mediation never fails, even if a settlement is not reached, because the parties will always come away knowing more about the dispute and, probably, at least having narrowed the issues in question. A second factor to be taken into account is that the commitment to mediation involves a low risk. The parties remain always in control of the dispute. Each party may terminate the mediation at any stage, if it feels that it is not making any progress, that the procedure is becoming too costly, or that the other party is not acting in good faith.
The commitment to mediation is thus controllable at all stages.
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