Conference on Dispute Resolution

In International Science And Technology

Collaboration

Conference on Dispute Resolution

In International Science And Technology

Collaboration

Hon. Alice D. Sullivan (Ret.)Hon. Alice D. Sullivan (Ret.)

What is Mediation

“A process” not “a meeting”

• Definitions – Mediation is a process in which an impartial third

party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

– Problem solving negotiation

– Facilitated legal negotiation

Goals of Mediation

• Interest Based– Priorities - Create Value – Not position based

• Enlarge The Pie• More Choices Than Court/Legal Determination• Identify and Meet Underlying Interests

– Repairing/Restoring the relationship– More business to be done?

• Self-Determined Resolution of Parties– Voluntary, un-coerced

Enforcement

• Written terms are a contract

• Can become an Arbitrator’s Award – Stockholm Chamber of Commerce

• Request to confirm the settlement agreement in an arbitral award

– WIPO Rules• Consent Award - Article 65 WIPO Arbitration Rules

– International enforcement

• NY Convention on the Recognition and Enforcement of Arbitral Awards (Treaty)

Role of the Mediator

• Neutral / Impartial– What is neutrality in a cross-border dispute?

• UNCITRAL: Third country• China: One from each country; joint resolution• Geography: Location of the mediation

• Facilitator: In Charge of the Process

• Improve Communication

• Promote Voluntary Decision Making

Selecting The Mediator

• By The Parties

• By An Organization (WIPO)

Standards of Conduct

• Disclosure / Rules– “A relationship that might create the

appearance of bias”

• Pre-Hearing: Ex Parte– The Shape of the Table– Who / When / Where / What Issues

Qualifications

• Process Expertise or Subject Matter Expertise• Experience, Training, Certification, Panels,

Language, Cost, Location • Interpersonal Skills: Communicator

– Establish trust with the Parties, between the Parties – Empathetic listener – Quick learner– Creative – Risk taker – Tenacity

Stages of Mediation

• Introduction– By Mediator

• Confidentiality• All decision-makers present?• Set tone

– By Parties• Opening statement

• Issues– Identify / Clarify / Analyze

• Interests– Identified

• Shared / Compatible / Conflicting

Stages of Mediation

• Generate alternatives– Separate inventing from evaluating– Synergy of ideas

• Evaluate– Establish legitimacy– What’s fair?

• Develop Fairness Criteria

Stages of Mediation

• Commitment– Realistic terms– Durable

• Satisfies interests• Legitimate

– Elegant simplicity– Written agreement– Enforceable

WhatMediation

Looks Like

What Mediation

Looks Like

9:00 a.m.

M

M = Mediator

Room A

M

M = Mediator

Room A

11:00 a.m.

Room B

M

M = Mediator

Room A

Room B

1:00 p.m.

M

M = Mediator

Room A

4:00 p.m.

Finished Document

6:00 p.m.

Role of the Parties

• Attend With/Without Counsel• Assert / Explain

– Documents / Charts / Diagrams

• Active Listening– Listening to understand vs. Listening to respond – Walking in their moccasins

• Generate Options• Evaluate Options• Decision Makers

– Prepare for a future without litigation

Role of Counsel

• Prepare the Client(s)– Interest / Priorities / Feelings

• Prepare the Mediator– Briefs / Pre-mediation Conference

• Generate Options and Evaluate

• Advise Clients

• Prepare Documents

Impasse

• UNCITRAL– Make proposals for settlement at any stage of the

conciliation– AAA– Article 13(a) and (b) WIPO Mediation Rules

• Mediator’s Proposal – If / When

• Investigator - ExpertsOslo Chamber of Commerce– “The Mediator, in cooperation with the Parties, shall

see to it that an Agreement is made.”

Settlement Documents

• Term Sheet – e.g.: License fees for how long;– Escalating payment structure

• Formal Agreement

• Fill in the Blanks

Why Mediate?

• Reduce uncertainty

• Preserve relationship

• Confidential – Rules

• e.g. Article 14 to 17 WIPO Mediation Rules

– Contract – Court

• Cost effective

• Efficient