Alternative dispute resolution

Last updated: 
4 March 2016

Alternative Dispute Resolution (ADR) is a collective term for processes such as mediation, arbitration and expert determination which enable parties to resolve their disputes without the need for litigation. Court action can often take considerable time, so finding a solution using ADR may be more efficient for both parties.

ADR provides advantages over traditional litigation in the resolution of IP disputes:

  • flexibility – IP disputes can be complex involving technical matters and multiple jurisdictions. In litigation the court hearings and procedures are subject to rigid and uncompromising regulations and legislation, however through ADR the parties involved can set the rules and conditions that best meet the circumstances. For example this could include the appointment of an appropriate subject matter expert, type and the procedures around the ADR process.
  • single process – IP rights are territorial in nature which can often result in litigation across a number of different jurisdictions. You can enforce IP rights across multiple jurisdictions through a single ADR process through the negotiation of an agreement between. This ability to settle disputes involving IP rights in many jurisdictions represents a significant saving in both time and costs, for both parties and government.

ADR usually takes place before a matter goes to court. However, in some cases ADR may be court-directed.

Mediation

Mediation is a process where a neutral third party, called a mediator, helps parties negotiate a mutually acceptable agreement. Mediation is an attractive option for parties that place a premium on the preservation or enhancement of their relationship, seek to maintain control over the dispute settlement process, value confidentiality, or want to reach a speedy settlement without damage to their reputations.

Contact a mediator – IP Mediation Referral Service

Our IP Mediation Referral Service provides businesses of all sizes access to qualified, accredited and specialist mediation providers. If you’re an Australian IP applicant or owner with an IP dispute matter, you can select a mediator that suits your needs to directly engage with. Mediators can be contacted by either party.

If you can’t find a mediator that suits your needs you might also find these services through other providers such as the Australian Small Business and Family Enterprise Ombudsman or the Mediators Standards Board useful.

The Small Business Commissions in most States and Territories can also assist with resolving a variety of business related disputes and offer a variety of services to assist small business including low cost mediation services.

Victorian Small Business Commission

New South Wales Small Business Commissioner

South Australian Small Business Commissioner

Western Australia Small Business Development Corporation

Arbitration

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Expert determination

Expert determination is a consensual procedure in which the parties submit a specific matter (e.g. a technical question) to one or more experts who make a determination on the matter.

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