Last updated: 
13 August 2018

What is mediation?

Mediation is a dispute resolution method that provides an alternative to practices such as litigation and arbitration. A mediator is not a decision-maker like a judge or an arbitrator; rather, the mediator will assist parties to resolve the issue themselves. Mediation is a non-binding process; at any point, either party can withdraw. The non-binding nature also means that decisions cannot be forced on either party. Any settlement must be agreed upon and accepted by all participants.

Why try mediation?

Mediation is a low risk method that delivers high rates of success. Unlike other methods that usually result in a winner/loser type situation, mediation can help you reach a mutually beneficial outcome. Its non-binding nature provides a safety net to parties by enabling participants to maintain control, and also to opt out where they feel they are not making any progress. Even in circumstances where a dispute isn’t settled, the interaction with the opposing party and knowledge gained throughout the process is still advantageous to most cases.

How does mediation differ from arbitration?

The main difference between mediation and arbitration centres on decision-making power. In mediation, decision-making power remains with the parties involved in the dispute. Whilst the mediator may facilitate discussion, the outcome must be accepted by both parties and is not decided by the mediator. In arbitration, the outcome is determined by a tribunal in accordance with the applicable law. Arguments are addressed to the tribunal (not the other party) with each party attempting to convince the tribunal of their case.

When is mediation appropriate?

Mediation may be suitable if one or both parties want to:

  • minimise costs, 
  • settle in a timely matter,
  • preserve confidentiality,
  • maintain control over the settlement process, or
  • manage a relationship throughout the dispute (e.g. where a contractual relationship exists)

When is mediation not appropriate?

Mediation isn’t for everyone. Mediation may not be suitable when:

  • one or both parties need an impartial opinion on a matter of difference, perhaps to set a precedent or to be vindicated publicly on an issue in dispute,
  • a party is certain that it has a straightforward case,
  • deliberate counterfeiting or piracy has occurred.

What can the mediators on IP Australia’s Referral Service Register help with?

The register contains mediators, who specialise in patent, trade mark, design and plant breeder’s rights disputes. They have experience in both small and commercial business and expertise in a range of subjects. These include (but are not limited to):

  •  science,
  • technology,
  • computer programming,
  • software, 
  • licensing, 
  • domain names,
  • publishing,
  • the arts,
  • gardens and nurseries,
  • agriculture,
  • mining,
  • property,
  • engineering, 
  • franchises, 
  • insurance, and
  • pharmaceuticals.

Many of the mediators are able to provide other methods of alternate dispute resolution. A number are also neutrals for the World Intellectual Property Organization.

When can mediation be used?

Mediation can be used at any stage during a dispute process. It can be a preventative method used prior to an actual dispute, where parties may have encountered a roadblock. It can also used in the early stages of disputes, when parties fail to reach a resolution on their own. Lastly, you may engage in mediation, even during more formal dispute resolution processes (i.e. litigation or arbitration).

How do I choose the right mediator?

Consider these questions when selecting the right mediator: 

  1. Would the parties like the mediator to provide a neutral evaluation of their dispute, or act as a facilitator of their negotiations?
  2. What are the desirable professional qualifications and specialist experience of the mediator?
  3. Is it more important for the mediator to have experience in the subject matter of the dispute, or the process of mediation itself?
  4. Is more than one mediator required? For example, do the parties come from different cultural and linguistic backgrounds? Or would it be beneficial to have both a technical expert and a mediation specialist as co-mediators?
  5. Does a conflict of interest exist?

What does mediation cost?

Please see the IP Mediation Referral Service Register for pricing of individual mediators.