burdlaw.com ADR Links by Bruce E. Burdick, JD
We have found mediation to be particularly beneficial in Intellectual Property disputes if the parties need to have an ongoing relationship once the dispute is over. In IP mediation, we have found the results often to be better than before the parties entered into the dispute. Mediation opens up possibilities that do not exist in Court proceedings. Costs vary, but are generally much lower than arbitration and far lower than litigation. Results can leave both parties "winning" and often with very creative solutions that add significant value far exceeding the cost of the mediation. If the mediation is ordered by a Court, the situation is forced and the parties tend to be belligerent at the start of mediation (posturing for the expected later litigation), but with a good mediator the belligerence can be stopped and surprisingly good results are often produced.
We have found arbitration of moderate benefit, and also best results are found where the parties need to have an ongoing relationship and come to ADR voluntarily because they want to save costs. It can be useful where the parties are not open to settlement by mediation and are both convinced they are right. Arbitration is usually expensive and is limited in results much the same as a trial . If the issue is a win-lose issue, i.e. one where one side must necessarily lose and the other must necessarily win, arbitration can provide a useful alternative to litigation in order to save cost and have a more knowledgeable person make the decision and to make the decision based more on the merits than on procedure and more on doing what is right than what is expedient to get the case of an overcrowded docket. We find that plaintiffs and defendants alike tend to be more satisfied with the arbitration decision that with the court decision, which tells us arbitration is a good thing for the parties.
There are also mixed forms of ADR combining mediation and arbitration. Our favorite is what is called "baseball arbitration" or MedALOArb (Mediation and Last Offer Arbitration), where the parties mediate and if unsuccessful an arbitrator, which may or may not be the mediator, must pick the last offer of one of the parties as the decision. That forces the parties to try hard to mediate and to make reasonable final offers to increase the chance of their offer being the one chosen if the mediation breaks down and arbitration is necessary. We think it really is most fair, most cost effective and most likely to achieve a settlement before the arbitration if the arbitrator was also the mediator, but find the parties usually are happier with the ultimate outcome if the arbitrator is not the mediator. The advantage to having the mediator not be the arbitrator is that the mediator can listen to anything during the mediation and the parties are more likely to open up and be honest if they know the mediator will not use their honesty against them in the arbitration. Still, on balance we prefer the mediator also arbitrate so there is no need to educate a second person, the arbitrator, on the facts and to avoid any arbitration decision that is based on a misperception of what happened during mediation.
ADR Resources -Findlaw's ADR Link Page
Here are some useful links to ADR. Organizations
ADR Resources - A comprehensive listing of ADR international links, with ratings and codes.
- the largest ADR organization
AIPLA - Intellectual Property arb/med
- a large international ADR organization - Paris, FR
WIPO Arbitration Center - concentrates of Intellectual Property disputes - Geneva, Switzerland
Harvard Program on Negotiation- Robert Mnookin & Staff
JAMS - Endispute : ADR Clearinghouse
Links to ADR Rules and Materials
Domain Name Dispute Resolution
Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999
Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999.