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Commercial suicide or good business sense?

Judges, IP offices, parties and even some lawyers are in favour of mediation in IP cases. So why is it not more common?


I was at a seminar on mediation organised by the UK IPO and hosted by Wiggin in London last night for companies and trade associations in the creative industries

The Institute of Trade Mark Attorneys is holding another event on Tuesday, which suggests that the topic is on something of a roll at the moment (it’s also the subject of Managing IP’s next cover story). So what’s going on?

The new push to sell the benefits of mediation has trickled down from the 2009 Jackson report into ways to rein in costs in civil litigation in the UK. In it, Lord Justice Jackson recommended there be a “serious campaign” to ensure judges, lawyers and businesses know about the benefits of ADR.

Mr Justice Arnold (right) spoke last night, and it was clear that he is already an enthusiast (“It works so go and do it” were his closing words).

The speakers also made clear that there was plenty in it for businesses, particularly for those who want to maintain a working relationship with the parties with whom they are in dispute. As mediator Andrew Hildebrand said: “It can be hard to reassure the other side that you want to do business after litigation. It certainly isn’t helped by the words ‘we have been instructed by’.”

But what’s in it for law firms? After all, there must be pressure in the partners’ dining room on litigation lawyers to bring in the cash, and the biggest cheques invariably follow trips to the High Court (and beyond).

Wiggin lawyer Simon Baggs referred to that in his presentation, saying that barristers and solicitors had been asking him whether a talk advocating mediation didn’t amount to commercial suicide.

But when one audience member asked why private practice lawyers would encourage clients to settle through mediation, Baggs said that it was a matter of economics: it was in his interest to keep his clients satisfied, he said. “There’s lots to be said for clients leaving mediation happy. They tell people and that means we get more buyers of legal services. Any referral is good.”

Although there’s an element of “well he would say that, wouldn’t he?” in his comments, one of Baggs’s clients later told me that he was right: good law firms focus on keeping existing clients happy – and returning – rather than burning them with one piece of expensive, but traumatising, litigation, especially when legal budgets are under pressure.

“We talk,” she said. “The word soon gets around.”

If you have experience of mediation (good or bad) and want to share those with us for our forthcoming article, do let us know.

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