Mediation / negotiation

Mediation
Negotiation

Mediation is an alternative, out-of-court method of solving disputes. It has been designed in such a manner as to settle a dispute amicably in shorter time but equally effective way. The pace and lesser degree of formality of mediation proceedings as well as lower costs are only a few benefits which make mediation a more and more frequently chosen option.

Mediation is:
– voluntary,
– confidential,
– impartial
– neutral.
It is conducted by a neutral mediator accepted by both disputing parties, who assists the parties in resolving a conflict and settling the dispute amicably. The mediator cannot suggest or impose solutions but, by using his/her communication and negotiation techniques, helps the disputing parties find the essence of the problem, clarify all related issues in the course of mediation proceedings, reach an agreement and accept the terms and conditions of a settlement.
Cost-effectiveness is another vital aspect of mediation . Mediation centres fix mediation fees by themselves. In practice, they are substantially lower than the costs of court proceedings

The Alternative Dispute Resolution Support Act which entered into force on 1 January 2016 provides for a variety of advantages for the disputing parties. These include significant reduction of court expenses, classification of mediation expenses as court costs, or exemption of a Motion for Approval of out-of-court settlement from the court fee. In addition to the above, while awarding the costs of proceedings, the court is going to consider whether a party made an attempt at resolving the dispute amicably before starting court proceedings, even if the attempt was not successful.

Therefore, even if a case was referred to mediation but the opposite party did not agree to mediate, or the mediation proceedings did not end with a settlement, lower court costs may be awarded against the party who made an attempt at resolving the dispute through mediation.
If mediation proceedings end with a settlement agreement signed before the start of a hearing before the court of first instance, the court shall reimburse the court fee in full. If an agreement is reached in the course of the proceedings, the court will reimburse three-fourths of the fee, and if the court proceedings end with a settlement– half of the fee shall be reimbursed.
It should also be pointed out that mediation enables solving a dispute faster than court proceedings, as only the disputing parties decide how soon they reach an agreement. Flexibility in scheduling mediation meetings also contributes to a faster pace of mediation proceedings.
Mediation in intellectual property cases
Efficient resolution of disputes concerning intellectual property rights is particularly significant nowadays, as these rights are a very important element of positive business image and strategy, as well as a considerable part of a company’s assets. As practising mediators and patent & trademark attorneys who advise businesses on the protection of intellectual and industrial property rights, we observe that the number of disputes resulting from infringement of these rights has soared while generating costs and consuming time. Moreover, for the period of examining the case by a court, the disputing parties are kept in suspense, as they cannot be sure whether the expenses spent on promoting a product or solution will not be ineffectual or even wasted. The court’s ruling is never entirely favourable to both parties. Mediation is a solution which may play a decisive role and result in working out a settlement resolving the conflict between the disputing parties. Mediation in intellectual property cases covers a wide range of issues, such as trademarks, patents, industrial designs, utility designs, geographical indications, names of plant varieties, internet domain names as well as copyright.

In the course of dispute resolution before the Polish Patent Office and before the EU Intellectual Property Office (EUIPO) the disputing parties are given time to negotiate. The time is prescribed statutorily and thus is mandatory, however, it is possible for the parties to resign from conducting negotiation and stay out until the prescribed period of time ends. Nevertheless we encourage our clients to engage in negotiation with the other party as proceedings which end with a settlement are faster and less costly.
Moreover, the participation of a negotiator in the process of dispute resolution is a more and more popular method of drafting a settlement so that it is as favourable as possible to a party.

What areas of law are covered:
We represent clients in negotiating agreements, one-time transactions, long-term settlements in industrial property cases, as well as copyright and unfair competition cases.