What Is Mediation: In Depth


Mediation is an open-ended, free form of alternative dispute resolution, elastic in nature to suit the parties and purposely designed and intended to avoid the multiple uncertainties in business and unrepairable, unrecoverable and destructive costs of litigation. Mediation is typically a facilitated negotiation, which can or cannot include analysis of the parties’ positions as the parties wish. Unlike litigation or arbitration, mediation never or rarely involves a decision-maker, except the parties themselves. The parties determine the mediation parameters and time/timing devoted to a solution. Many times the solution is not legal in nature, but a common sense, practical ending for the disputed matters.

Trademark Mediators Network (TMN) members focus on the parties’ interest in resolving trademark, trade dress and unfair competition disputes, along with any other ancillary intellectual property, contract or commercial issues. Members of the TMN are experts in trademark law and litigation, as well as in multiple negotiation techniques, from around the globe.

An expert mediator meets in a confidential setting with the parties in an effort to help them find a business resolution/settlement of the dispute without the need for judicial intervention. Confidential information from one party to the mediator is never revealed to the other party, unless allowed expressly by the conveyor of the information. There can be minimal prior briefing, including ranges of settlement figures if money (damages) is an issue, as well as presentations with both parties present in the room or in separate rooms from time to time. The mediation may occur over time and not in one single meeting or setting but often can and is finally resolved in a single setting. Often the disputes involve resolution of issues on a global basis. It should be emphasized, however, that control of the outcome is by the parties. Further, while proceeding is non-binding, the result of this process is often binding if the parties choose to end their dispute and agree to a mediated settlement.
©2013 International Trademark Association