The analysis could certainly be as simple as implied above if both mandatory mediation and intellectual property disputes were single dimensional processes. Once the interplay of these complex processes have been examined, however, one must concede that intellectual property disputes cannot be reconciled or rendered more efficient by virtue of mandatory mediation. The source of the incompatibility comes from the fundamental conflict between the philosophy of mediation and the objectives of intellectual property litigants. Whereas mediation aims to “educate the participants about each other’s needs and provide a personalized model for settling future disputes”, intellectual property conflicts often require only a narrow determination of liability. In the context of patent infringements, for example, the dispute is resolved either by the declaration that the patent belongs exclusively to one party, or by a court order preventing the offending party from selling competing goods or services. The focus of the dispute is not the preservation of a harmonious relationship, but a determination of the rightful proprietor of intellectual property. It is this adversarial nature of intellectual property disputes that curtails any chance of reaching a compromised settlement through mandatory mediation.
While parties to intellectual property disputes are unlikely to rescind from their polarized positions to reach settlement, there are also more profound concerns with mandating mediation in this context. Intellectual property disputes often arise from situations involving bad faith counterfeiting or piracy, or are commenced with the purpose of establishing a precedent or being publicly vindicated on an issue in dispute. The resolutions required to adequately compensate these litigants clearly cannot be realized in a process which emphasizes confidentiality and is founded on the “peace and understanding central to Confucian thought”. Furthermore, it would trivialize the subject matter of the dispute to insist that intellectual property litigants reconcile their differences within the harmony ideology of mediation, which itself implies that concessions ought to be made to arrive at a settlement. The effect of imposing mandatory mediation in this unique context is that it will become a formality which wastes both time and resources. There is also a substantial risk that a vindictive party will use Rule 24.1 to justify engaging in negotiations merely for the purpose of prolonging the dispute.
Another legitimate concern in relation to mandatory mediation is that it impedes access to trial and thereby constitutes a denial of due process. The Ontario Civil Justice Review appears to concede this point by declaring that “members of the public should have the option to select the process which is most suitable to the resolution of their particular dispute”. With regards to intellectual property disputes, mandatory mediation represents not only a hurdle to be cleared before litigation but also a sacrifice of procedural safeguards. Although litigants are not obliged to accept mediated agreements, they will be reluctant to negotiate the dispute without the opportunity to cross- examine the opponent’s witnesses. The need for cross- examination is essential and relates to the mistrust between the litigants that prevented the resolution of the dispute at an earlier stage. The right to appeal is another safeguard connected to litigation which the parties to an intellectual property dispute would be unwilling to relinquish. The inability of an intellectual property dispute to proceed in the absence of these procedural safeguards is yet another reason why mandating mediation is a misuse of scarce resources.
A more generic concern with mandatory mediation, which also applies in the context of intellectual property disputes, is the potential for power imbalances to influence settlement agreements. Advocates argue that mediation is advantageous because “it is not bound by the rules of procedure and substantive law that dominate the adversary process”. What these advocates fail to disclose, however, is that the less legalistic nature of mandatory mediation fails to protect the weaker party from being coerced into an inequitable agreement. This is of particular concern in intellectual property challenges where a litigant may be in dispute with a large corporation over a patent violation. This is a clear case where one party would feel increased pressure to settle due to a power imbalance. A situation of undue pressure is difficult to prevent as the source of the power imbalance may not be readily apparent, and a mediator attempting to assist a weaker side would be susceptible to accusations of impartiality.
The above analysis reveals the inherent risks involved in subjecting intellectual property disputes to mandatory mediation. In this context, mandatory mediation will cause unnecessary delay, a denial of due process, and pressures to settle resulting from power imbalances. It is recommended that disputes which do respond to the logic of mandatory mediation, such as intellectual property disputes, be excluded from rule 24.1.
Watson & McGowan, Ontario Civil Practice, Rule 24.1, at p.555.
Emond, Paul. “Alternative Dispute Resolution: A conceptual Overview” (1989) in Watson, G, The Civil Litigation Process, 5th ed. (Toronto: Emond Montgomery Publications Ltd, 1999) at p. 218.
Ontario Civil Justice Review. “The Multi- Door Concept and Alternative Dispute Resolution” (1995) in Watson, G, The Civil Litigation Process, 5th ed. (Toronto: Emond Montgomery Publications Ltd, 1999) at p. 225.
Folberg, J. and Alison Taylor. “Mediation” (1994) in Watson, G, The Civil Litigation Process, 5th ed. (Toronto: Emond Montgomery Publications Ltd, 1999) at p. 238.