On day one of the EUIPO’s IP Mediation Conference, which took place at the EUIPO's headquarters in Alicante this week, panellists agreed on two key resolutions for encouraging alternative dispute resolution: overcoming scepticism and building capacity.
Sessions on the first day, which took place yesterday, October 19, covered a wide range of topics, including how to build the EU as an ADR hub and how lawyers can pick up mediation skills.
João Negrão, the EUIPO’s new executive director, who spoke to Managing IP earlier this week about his plans for the office, started the day by welcoming everyone to the conference.
Negrão and other speakers then highlighted the EUIPO’s growing role in ADR.
Gordon Humphreys, interim chair of the EUIPO's Boards of Appeal (BoA), noted that the office was opening a mediation centre next month.
With the European Commission also mulling new responsibilities for the EUIPO, Humphreys said the office “was heading in the right direction”.
Anna Joubin-Bret, secretary of the UN Commission on International Trade Law, noted that mediation had key advantages over other dispute resolution methods.
According to Joubin-Bret, mediation offers more flexibility to parties and allows them to reach mutually beneficial outcomes.
Further, in industries where proprietary information is valuable, mediation provides the option to keep both the proceedings and the outcome confidential.
Joubin-Bret added: “Outcomes in mediation proceedings are also more certain.”
Breaking barriers
Later in the day, panellists in another session discussed how lawyers can pick up the necessary skills to help their clients achieve the most practical outcome.
Panellists said active listening, strong communication, and preparing in advance could guide everyone involved to the best possible outcome.
Mladen Vukmir, president of ECTA, said lawyers must put their technical expertise on the back foot and put their clients’ interests first.
Alessandra Romeo, external relations officer at Marques in Italy, said the mindset that leads lawyers to edge their clients towards litigation rather than mediation is a cultural issue that needs to change.
“Training events dedicated to legal professionals on mediation matters are needed. Mediation needs to be seen as a professional opportunity and not a barrier to the business of lawyers or a waste of time,” she said.
Judicial support
Another session explored the role of judges in facilitating mediation.
Goda Ambrasaitė-Balynienė, a judge at the Supreme Court of Lithuania, said judges should encourage parties to resolve cases amicably “every time they have a case on their table that’s more appropriate for mediation”.
She noted that judges often have reservations about referring cases to mediation because they feel that they’ll lose out on valuable time if those cases are not settled.
ADR hub
In another session, panellists discussed what was needed for Europe to become a global ADR hub for IP disputes.
The panellists noted that the top ADR hubs - London, Geneva, Singapore, and Hong Kong SAR - all have one thing in common: the best-in-class ADR centres, experienced professionals, and training facilities.
Peter Müller, managing partner at Müller Schupfner & Partner in Munich, argued that Europe historically needed mediation because European countries had been at war with each other for a long time.
The EUIPO may have been destined to become an ADR hub, Müller said, but challenges around the enforceability of mediation and ADR decisions remain.
Interim BoA president Humphreys said Europe must better equip its lawyers and professionals and give them the tools they need.
He added that lawyers are scared about getting into ADR because they think it puts them out of their comfort zone, but that there is a need to change that mindset.
In the same session, panellists also discussed the chances of potential conflict between the Unified Patent Court’s planned Patent Mediation and Arbitration Centre and the EUIPO’s Mediation Centre.
Both centres are expected to start operating in the coming months.
Speakers said it was important to ensure that there was no competition between the centres and that they should cooperate.
The panellists then discussed the Singapore Convention on Mediation. The convention allows international enforcement of mediation decisions and has been signed by 56 countries, although not the EU.
Humphreys noted that several states opposed signing it because they had more stringent enforcement rules for domestic arbitration decisions than what the Singapore convention provided for.
Opposing member states feared that there could be a situation where international disputes are treated more favourably than domestic disputes, he noted.
He added there was a need to “convince the [EU] commission” to sign the convention.
Other panellists stressed the need to revise the EU’s Mediation Directive, which they said was rarely used. They added that any amendments must also make it cost-beneficial for parties to mediate.
Axel Walz, regional judge at the Higher Regional Court of Munich, highlighted the need to train mediators and to put in a framework that collects statistics on how mediation is received by different countries in Europe.
Humphreys agreed that a statistical framework had to be put in place and be sufficiently updated to enable the EUIPO to facilitate mediation.
He added: “It’s a long game”.
The IP Mediation Conference closes today, October 20.
