New WIPO ADR Guide for IP Cases

The Arbitration and Mediation Center (AMC) of WIPO, the World Intellectual Property Organization, just released an updated guide providing an overview of Alternative Dispute Resolution (ADR) processes for intellectual property disputes. Since intellectual property portfolios became an essential part of business value, businesses started looking at more efficient methods to settle disputes than litigation. WIPO's AMC was created almost 25 years ago, recognizing a growing ADR trend where international parties informally gathered to settle disputes without litigation. The new WIPO guide is designed to provide an overview of ADR processes without purporting in any way to be authoritative or prescriptive. Chapter One of the guide offers background information concerning the early use and rise of ADR around the world, followed in Chapter Two by a description of potential advantages of ADR for intellectual property disputes. Chapter Three explains in more detail the different ADR procedures that may be used in intellectual property disputes, while Chapter Four outlines some practical considerations that may be relevant for IPOs and courts that wish to institutionalize such ADR procedures. For the substantive and procedural implementation of such procedures, the guide identifies as a core element the interface with existing regulations. The guide reminds litigants that ADR processes can deliver outcomes that provide a certain and conclusive resolution to disputes. This finality is a clear advantage for ADR, as the complexities of intellectual property litigation can make outcomes uncertain. Legal judgments can be overturned on appeal and jurors that often lack technical expertise may make incorrect decisions. See more here-- https://bit.ly/2vpuocT

The Evolution of the Joint Session

Recently, Kim Taylor, COO of JAMS, questioned the survival of the long-held practice of commencing mediation conferences with a joint session of all parties and their counsel. Usually, that provides an opportunity for each viewpoint of the case to be expressed to the other side and to outline the settlement process with participants, before breaking into individual caucuses. Over eighty percent of mediators surveyed earlier this year used such sessions twenty years ago. Lately, a resistance to joint sessions is reported to have arisen. That survey of neutrals revealed a decline in the use of the joint sessions. Regionally, some seventy percent of neutrals based in the east said they still regularly use joint sessions. I find them to be helpful and estimate that I start that way over ninety percent of the time. However, the report from Southern California is that joint sessions are held merely a quarter of the time. Perhaps the process has become confrontational or maybe both sides already understand the positions and everyone just wants to get down to the business of negotiating, supposedly saving costs. Of course, there are certain cases where a joint session is not productive and could actually prove detrimental to the process. Ms. Taylor suggests that because of self-determination, most mediators will not insist on a joint session if the parties do not want one. However, to skip an initial joint session could impact the process that follows, limiting options for settlement or finding common ground and the path to a deal. I try to use it regularly, as our rules require disclosures and I find it assists in laying some foundation for the process and expectations. Caucuses can remain confidential and the parties retain control over information to be shared. Using the open ended question in joint session to get positive responses from the parties at the outset on areas where there already may be overlap in agreement on facts or damages is essential to reaching a successful outcome. See more here-- http://bit.ly/1KajjyN

Florida Appellate Mediation Procedures Amended

Changes I proposed to the Florida Rules of Appellate Procedure (FRAP) were adopted by the Supreme Court of Florida last week to conform with amendments previously passed and adopted in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument took place last summer and my rule amendment will be effective January 1, 2015. The new language in Florida Rule of Appellate Procedure 9.720 is designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was even a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. See full opinion resulting from FRAP rules committee regular-cycle report here-- http://www.floridasupremecourt.org/decisions/2014/sc14-227.pdf

Oral Argument Scheduled on Appellate Mediation Rule Change

Recently, I proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument has been scheduled before the court for June 5, 2014. Comments were due by April 1st. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. See the new rule subdivision language and full three-year cycle report of the Appellate Rules Standing Committee here: http://www.floridasupremecourt.org/clerk/comments/2014/14-227_020314_Petition.pdf