Alternative Dispute Resolution (ADR)
Arbitration Proceedings / Grievance Proceedings / Mediation Proceedings
An Overview of ADR
When people think of hiring a lawyer to resolve a dispute, they often have in mind that their problem will ultimately be resolved at a trial with a judge ruling in favour of one party and against another. This understanding, perhaps reinforced through television and movies, does not represent the reality. In fact, most lawsuits settle.
For the longest time, it was not uncommon for parties to go through all the steps of litigation, from pleadings through documentary and oral discovery, only to settle, sometimes “on the courtroom steps.” Bearing this pattern in mind, we have created an Alternative Dispute Resolution or ADR practice group to assist parties—not our clients—achieve settlement sooner and cheaper than by going through the court process.
In this context, we assist parties in disputes by providing independent, unaffiliated persons to assist them to reach a resolution. This may be achieved through two different paths. Arbitration proceedings are generally adversarial in nature and the arbitrator makes a final decision, just as a judge does, but outside the court system. A private mediator assists the parties in reaching settlements through consensus and does not impose a decision.
The members of our ADR group, although skilled as counsel, are available to assist parties by being the neutral third party in binding arbitration proceedings or in mediation sessions.
Traditionally, parties in dispute have resorted to the court system to resolve their disputes, going to trial if they do not reach settlement on their own. Court decisions generally involve one side winning and the other losing, what some have referred to as a “zero-sum game.” Using mediation to resolve disputes allows all parties to win, as the terms of settlement are generally limited only by the parties’ imagination.
Mediation is a voluntary process whereby the parties, assisted by their counsel if they want, meet with an independent mediator whose job is to assist the parties in reaching settlement.
The parties may meet all together with the mediator and/or separately. It is generally agreed by the parties and the mediator that the mediation sessions are to be entirely confidential in nature so that anything said at the mediation may not be repeated elsewhere. This allows the parties to explore settlement possibilities without worrying that what they say may be used against them. They may bring into the settlement discussions matters that would not be relevant in the lawsuit.
The result? Parties can make settlements that are far more satisfying and, therefore, lasting than results the courts might impose. A well-trained and experienced mediator can assist the parties in getting those results.
For example, in one case in which we were involved, one party sued another for patent infringement. Shortly after the claim was served, the parties decided that negotiating a settlement would be more advantageous to both sides than fighting in court. Ultimately, the matter was settled, with the party suing for infringement granting the other party a license in exchange for a license of technology from the other party.
In addition, the parties entered into a supply arrangement, whereby each supplied the other with certain parts. Instead of a “zero-sum” result, both parties benefited.
Mediation, especially if begun soon after it is clear that a dispute has arisen, is an effective and inexpensive way to get to a resolution—with absolute confidentiality.
Resolving Intellectual Property Disputes through Mediation
Fillmore Riley is affiliated with the IP Neutrals of Canada. IP Neutrals of Canada was established in 2010 by a group of leading Canadian Intellectual Property practitioners to provide a roster of highly qualified mediators and arbitrators (neutrals) to assist in the resolution of IP disputes. Steven Raber is recognized as a mediator with IP Neutrals of Canada.