Legal Essay On Mediation

Alange’s Law Classes 1 Legal Essay
Legal Essay on Mediation & Pre Institution Mediation

An Introduction to Mediation
Definition: -
In its simplest form, mediation is a process in which a neutral third party assists
disputants to reach a voluntary, negotiated settlement of the issues in dispute. The mediator
facilitates communication between disputants so they can more clearly understand their
differences and craft a mutually acceptable settlement, but has no power to impose a
decision upon the parties.
TYPES OF MEDIATION:-
1. Evaluative mediation: The mediator evaluates the claims or rights of the parties
having regard to the applicable legal rules.
2. Facilitative or problem-solving mediation: The mediator helps the disputants to
resolve their differences by facilitating communication and the search for creative
(mutual gain) solutions.
3. Therapeutic mediation: The mediator helps parties "heal the hurt" caused by
disputes and may facilitate a "reconciliation" between the disputants.
4. Transformative mediation: The objective of mediation is to transform the
disputants, both individually and in relation to one another through "empowerment"
(disputants improve or learn new skills to resolve their own disputes) and
"recognition" (understanding the other side's perspective, thereby creating
"empathy" for the other).
CHARACTERISTICS OF MEDIATION
 Voluntary - right to terminate
• Private and confidential
• Assisted or facilitated negotiation
• Flexible (relatively unstructured)
• Self-determining
• Creative and practical

• Future focussed
• Without prejudice to participation in other processes
ROLE OF THE MEDIATOR:-
1. Setting the tone for joint problem-solving by establishing and maintaining a rational
and productive atmosphere for negotiation.
2. Encouraging full disclosure of information.
3. Assisting the parties to understand each other’s perspectives (needs, concerns, values,
fears) and trying to build empathy between the parties.
4. Facilitating communication between the parties by keeping the discussions “civil”;
allowing parties to vent if appropriate; taking the “sting” out of loaded or angry
statements by, for example, reframing them in neutral way or in a way which reveals
the underlying interest.
5. Maintaining balance in the process by ensuring that the parties have an equal
opportunity to speak.
6. Identifying and seeking clarification of misunderstandings, assumptions, and
discrepancies.
7. Probing for interests underlying positions taken by the parties in order to expand the
opportunity for creative solutions.
8. Assisting parties to identify common interests.
9. Assisting the parties to explore and assess their alternatives to a negotiated resolution.
10. Acting as a “reality check” by challenging parties on their positions (usually in caucus)
and by reminding them of the costs of not settling.
11. Assisting the parties to generate options for settlement and to develop criteria by which
to evaluate those options.
12. Assisting the parties to evaluate the advantages and disadvantages of each option and
encouraging the selection of an option which maximizes satisfaction of both of their
interests.
13. Keeping the parties focused on the future and their goal of resolving the dispute.
14. Maintaining optimism that an agreement can be reached and sustaining commitment to
assist parties achieve resolution.
Pre Institution Mediation: -

A 2018 amendment to the Indian Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”)
makes it mandatory for a party to exhaust the remedy of mediation before initiating court
proceedings under the Commercial Courts Act, with the limited exception of cases where
urgent relief is being sought.
Definition: -
Section 12A of the Commercial Courts Act provides parties with an alternative
means to resolve disputes through discussions and negotiations with the help of a mediator.
The provision states that a plaintiff must initiate mediation before filing a suit, with a
limited carve out for suits filed with applications for urgent interim relief.
Courts in India frequently refer ongoing patent infringement suits to mediation when
there exists a possibility for the parties to arrive at a settlement. However, in the absence
of a law imposing a time limit for completion of such court-referred mediations, in many
cases, mediations of patent infringement suits go on for months with no resolution.
Mediation under the Commercial Courts Act bridges this gap by making mediation a time-
bound process. In India, most IP infringement suits are filed with an application seeking a
preliminary injunction. This would qualify as “urgent interim relief” under Section 12A
and initiation of mediation prior to filing of the suit would not be mandatory. However, in
disputes where a patentee is not seeking a preliminary injunction and wants to use litigation
as a tool to negotiate terms for granting limited rights to their IP, pre-initiation mediation
is a viable option.
Procedure:-
As per the Commercial Courts Rules 2018, the plaintiff must file an application with
the State Legal Services Authority or the District Legal Services Authority to initiate
mediation. The Authority will issue notice to the opposing party to appear within 10 days
of receipt of notice and give consent to participate in the mediation proceedings. The Rules
provide for issuance of a final notice if the Authority does not receive a response within 10
days of the initial notice. If the opposing party fails to appear following the final notice or
refuses to participate in the mediation proceedings, the Authority will treat the mediation
process as a non-starter and prepare a report to that effect. If the opposing party agrees to
participate, then the mediation process begins. Following negotiations and meetings with
the mediator, if the parties arrive at a settlement, it will be recorded in a settlement
agreement.
Advantages: -
Instituting pre-initiation mediation holds many advantages over out-of-court inter-party

negotiations:
1. Time and cost-effective.
Pre-institution mediation initiated under the Commercial Courts Act must be

completed within a period of three months from the date of application made by the
plaintiff, with a possible extension of two months with the consent of the parties. The
time bound process saves time and costs incurred by the parties involved. A recent
example of effective use of this mechanism is the mediation instituted by Nokia to
negotiate licenses for its standard-essential patents relating to technology used in
handsets. The mediation procedure was reportedly completed within a time span of 8
months and Nokia was able to resolve the dispute without filing a suit.
2. Avoid Lengthy Litigation:-
Patent litigations in India are known to be lengthy. According to one report from
2017, a total of 143 patent infringement suits were filed between 2005 and 2015 in the
Delhi High Court, Bombay High Court, Madras High Court and Calcutta High Court out
of which judgments were delivered in only five cases after completion of trial
proceedings. Exploring the possibility of a settlement before filing a suit could avoid
such lengthy litigation.
3. Confidentiality.
Confidentiality of negotiations with a potential licensee is key to prevent disclosure

of important business strategies to competitors. The Rules ensure confidentiality by
providing that the mediator, the parties, and their counsels must maintain confidentiality
about the mediation. Stenographic or audio or video recording of the mediation
proceedings is prohibited under the Rules.
4. No threat of a validity challenge.
A patentee must always assess the strength of their patent before filing a suit since
a defendant can challenge the validity of a patent. Even at the interim stage, a defendant
can avoid an injunction being granted against them by raising a credible challenge to the
validity of a patent. When the patent is susceptible to a challenge, pre-initiation
mediation can be a good choice to negotiate a license without the threat of a validity
challenge.
5. Assessing the strength of the opponent’s case.
Through negotiations in a mediation proceeding, a patentee can get a sense of the

opponent’s strengths and weaknesses and prepare for the possibility of contesting a suit.
The opponent might reveal that their product is covered by another patent or is based on
technology available in the public domain. The patentee then has time to assess the
likelihood of its success in a suit. There is no bar on seeking interim relief if a suit is
filed in the event of a failure of mediation proceedings. Depending on the patentee’s
assessment of its case, a patentee may still seek an interim injunction even after trying
mediation.
6. Negotiating in good faith.
Licensee negotiations between parties can often go on for months. During this time,
a potential licensee may at time engage in infringing acts. The threat of possible litigation
that could result due to an unsuccessful mediation under the Commercial Courts Act
would possibly motivate a potential infringer/ licensee to negotiate license terms in good
faith. The Rules also provide that parties shall participate in the mediation process in
good faith with an intention to settle the dispute.
Disadvantages:-
Section 12A imposes a mandatory obligation upon the plaintiff to initiate mediation.
However, the Rules give the opposing party the right to refuse to participate in the
mediation proceedings. If the opposing party does not appear, it will also result in the
mediation proceedings being deemed a non-starter. This optional approach arguably results
in the provision lacking teeth.

Legal Essay On Mediation

Uploaded by

Copyright:

Available Formats

Legal Essay On Mediation

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Essay On Mediation

Uploaded by

Copyright:

Available Formats

Alange’s Law Classes 1 Legal Essay

Legal Essay on Mediation & Pre Institution Mediation

• Creative and practical

Pre Institution Mediation: -

Instituting pre-initiation mediation holds many advantages over out-of-court inter-party

1. Time and cost-effective.

Pre-institution mediation initiated under the Commercial Courts Act must be

2. Avoid Lengthy Litigation:-

Confidentiality of negotiations with a potential licensee is key to prevent disclosure

4. No threat of a validity challenge.

5. Assessing the strength of the opponent’s case.

Through negotiations in a mediation proceeding, a patentee can get a sense of the

6. Negotiating in good faith.

You might also like