Intellectual property disputes

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        Scholars and practitioners alike have proclaimed mandatory mediation a triumph in the pursuit of a more efficient and cost- effective dispute resolution system. In its most potent form, advocates claim that mandatory mediation will remedy the flaws of delay, formality, and dissatisfaction which pervade the current civil justice system. In an age where the adversarial model is falling into disrepute, mandatory mediation holds the promise of earlier settlements in a context focused on party empowerment. The potential success of this practice has become so consumed by popular thought that few have paused to consider the myriad of issues embedded in the oxymoron of ‘mandatory mediation’. One fundamental concern with coercing a party into mediation is that certain types of disputes are not reconcilable within this forum. Litigants involved in intellectual property disputes, for example, are susceptible to unnecessary delay, denial of due process, and substantial power imbalances when subjected to mandatory mediation. Utilizing the context of intellectual property disputes, this paper offers a critical examination of the repercussions of instituting mandatory mediation as a preliminary step to litigation.      

        Rule 24.1 of the Ontario Rules of Civil Procedure was implemented with the specific mandate “to reduce costs and delay in litigation and facilitate the early and fair resolution of disputes’. At first glance, this rule appears to be in complete accordance with the needs of intellectual property litigants. Disputes involving patents and copyrights, for example, require expedient resolution as the matters in dispute may become obsolete before a litigant receives the trial judgment. This paramount concern of efficient resolution of intellectual property disputes is derived from the rapidly changing technological environment in which these conflicts often arise. Due to the unique sensitivities involved in intellectual property litigation, it is truly a class of dispute which embodies the old adage of “justice delayed is justice denied”. With the manifest purpose of infusing momentum into the litigation process, mandatory mediation in the context of intellectual property clearly appears to be the appropriate forum for the fuss.  

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        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 ...

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