What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) is a collective term for processes such as mediation, arbitration, and expert determination. These processes 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.
What are the advantages of ADR?
ADR provides flexibility. IP disputes can be complex, involving technical matters and multiple jurisdictions. Through ADR, participants can set the rules and conditions that best meet their circumstances. This could include the appointment of an appropriate subject matter expert, type and the procedures around the ADR process.
ADR also allows for a 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. 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.
When should I use ADR?
ADR usually takes place before a matter goes to court. However, in some cases ADR may be court-directed.
Types of ADR
Mediation is a process where a neutral third party, called a mediator, helps parties negotiate a mutually acceptable agreement.
We encourage the use of Alternative Dispute Resolution (ADR) as it’s a flexible, less complex and often a more efficient method to resolving IP disputes before taking more formal legal action.
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.
A number of providers can provide further information about using mediation to resolve business related disputes and assist in finding a suitable, qualified mediator. Services include the Resolution Institute, Australian Small Business and Family Enterprise Ombudsman or the Mediator Standards Board.
The Small Business Commissions in most states and territories can also assist with resolving business related disputes. They 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 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 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.
How do I resolve a dispute with an international party?
The Arbitration and Mediation Center of the World Intellectual Property Organization (the WIPO Center) provides a range of ADR services designed to resolve international disputes for IP and technology. Find out more here.