Conference 2015 Report: What is best – mediation, arbitration or the courts?

Tom Flanagan, RTTP, Director, DIT Hothouse, Dublin Institute of Technology, chaired a fascinating discussion of the difference in processes for resolving disputes using mediation, arbitration and court proceedings. The panel included The Honourable Mr Justice Peter Kelly, Judge of the Court of Appeal in Ireland, formerly Judge in Charge of the Commercial Court in Ireland; Judith Schallnau, Lawyer, IP Disputes Management Section, WIPO Arbitration and Mediation Centre; David Perkins, Arbitrator / Mediator for WIPO and other international arbitration bodies. Peter Kelly described the changes to Irish commercial court procedures over the past 10 years, and how the Irish system is now on average the fastest in the EU, partly because it is proactively case managed. The Irish courts strongly advocate the use of mediation as an alternative to resolution through the courts, although they cannot impose mediation. He advised that mediation can offer solutions to issues beyond those discussed in the court case, and that this can have a positive impact for all parties involved.  Judith Schallnau from WIPO described the WIPO arbitration and mediation service, and their role in facilitating both processes and in case management. She mentioned the use of mediation and arbitration in model agreements like DESCA (Horizon2020)  and explained the differences between court litigation, arbitration and mediation lying in cost (mediation and arbitration are less expensive than court litigation in multiple jurisdictions) and time (mediation is much shorter than court litigation in many jurisdictions, arbitration can be tailored to meet the need for timely dispute resolution) and in the role of the mediator (facilitates communications, may make proposals while the parties determine the conduct of the mediation and terms of settlement) and the arbitrator (who decides the case).   David Perkins then shared his experiences as an arbitrator and a mediator, discussing the various forms that success can take. He set his experiences against the back drop of current court procedures and the expected changes when the Unitary Patents Court (UPC) comes into being, commenting that the UPC may take many years to settle down. A great session which clearly put the importance of alternative methods of dispute resolution in the spot light together with the need to consider these at the point of contact drafting. Copies of the speaker presentations are available online: http://www.praxisunico.org.uk/resources/presentations.asp