les Nouvelles - March 2007

Mediation In An IP Context: Comparison Between The WIPO Mediation Rules And The ICC ADR Rules

Jane Player

Partner, Bird & Bird, London, England

Ioanna Thoma

Associate, Bird & Bird, London, England

Mediation is not a familiar process to most international business executives. The most widely accepted definition of mediation is “a voluntary process in which a neutral third party, who lacks authority to impose a solution, helps participants reach their own agreement for resolving a dispute.” As further explained elsewhere “cutting the cake, splitting the baby and compromising somewhere in the middle is not the key objective, but rather refashioning the structure of the relationship or of several relationships involved in the dispute—in order to create additional value then available for distribution between the parties.”

Mediation is a highly confidential and relatively unstructured and informal procedure in which the participation in the process as well as the acceptance of any outcome depends on the parties agreement. The main feature of mediation, as opposed to arbitration and court action, is its lack of any means of compulsion.3 In this respect, sets of rules play a fundamentally limited role in mediation compared to binding arbitration. Mediation as a negotiation process emphasizes the ‘interests’ and ‘needs’ of the parties as opposed to their ‘rights’ and ‘obligations’. In mediation, more possibilities are available for conflict resolution, particularly with regard to the structuring and framing of the parties’ future business relationship.

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