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.
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.
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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.