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It's good to talk

Dids Macdonald, CEO of Anti-Copying in Design, discusses the benefits of the company's Mediate To Resolve initiative.

Is there an alternative to litigation if your designs have been copied? Yes, definitely. Mediation offers a user-friendly alternative to the cost and time consuming experience of having to go through an often debilitating legal process. So, whether you're a claimant or defendant, the trick is to encourage both parties to come to the table and talk before either gets too entrenched in the legal process.

So how can one ensure that both parties will attend mediation? Well, a good start is to campaign industry organisations to adopt mediation as part of their code of conduct in the event of a member-to-member dispute. For example, if ever there's a dispute between ACID members, it's a condition for all members, having signed our code of conduct, to first go to mediation. It just makes sense. Who wants to even enter into protracted and costly litigation?

Angus Gardner, Managing Director of Caroline Garner Publishing, said, "A lawyer friend of mine once said to me that litigation should be reserved for life or death situations. The fact of the matter is that the process of litigation is both expensive and all-consuming. Neither are good things for a small business, and so I fully endorse ACID's Mediate To Resolve initiative, where matters can be resolved with the help of a trained and experienced mediator, quickly and before costs have got too painful."

Sadly, copying is part of the culture in a competitive world such as the giftware sector and often, those who copy most are the ones who can afford endless litigation. They often adopt the strategy that they can stonewall legal challenge and perpetuate litigation so that micro and small and medium-sized enterprises (SME) innovators simply have to give up the fight. But, help is at hand: ACID will be announcing the extension of its successful exhibition grass roots mediation model and will introduce Mediate To Resolve - an alternative to dispute resolution. This is a mediation service without IP lawyers, but with a highly skilled intellectual property mediator. The parties jointly appoint a mediator, who's an independent third party, to act as a catalyst to assist the parties to craft their own solution to the dispute rather than have one imposed upon them. The mediator cannot force the parties to accept a decision and the mediator will not offer one.

Nick Kounoupias, ACID's Chief Legal Counsel and also a mediator said, "Mediation is generally pretty under-utilised in IP disputes but in the vast majority of cases mediation offers a quicker, cheaper, less stressful, less distracting and far more satisfying solution to a dispute than litigation, and importantly enables parties to craft a settlement that works for them rather than one imposed by a court."

Mediation has proven itself over the last 15 years to be an effective way of resolving disputes without the need to go to court. ACID's statistics broadly reflect this trend; of the 3500+ exhibition mediations that ACID has handled to date, only about 30 per cent were not settled on the day, with the vast majority settling very quickly afterwards, and only three going to court. Nick added, "This process and the trust placed on the mediator by all parties provides the framework within which to reach a solution and helps defuse some of the tension and upset that persists in litigation through correspondence. At a mediation between two designers and manufacturers this year, the mediation ended a few hours later having settled their differences and sharing a taxi and a drink on the way back to their respective train stations. So it does work. Give it a try." So what advantages does mediation have over litigation?

Flexibility: Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.

Your own settlement: Mediation enables the parties to craft their own settlement and agree terms of settlement that can exceed the possible remedies made available by a court. In contrast, a judge is constrained in the remedies he can award.

Selection of neutral: The parties can select their mediator, who can be trusted and respected by both parties and is an expert in his field.

Nothing to lose: By entering into mediation, neither party loses their right to pursue other dispute resolution methods such as litigation. It can take place at any time, including during litigation.

Confidential: The mediation is completely confidential, unlike litigation, which is open to public scrutiny.

Maintains relationships: Litigation by its very nature is adversarial and often irreparably damages relationships, whereas mediation encourages communication and co-operation between the parties and can often preserve relationships and generate future business.

Court expects mediation: Recent cases have shown that the court may deny winners at trial their costs and expenses if they have unreasonably refused to mediate.

Baroness Neville-Rolfe DBE, CMG, Minister for Intellectual Property, commenting on the ACID scheme said, "Mediation and other Alternative Dispute Resolution mechanisms offer many advantages over litigation and can be particularly valuable in IP cases. ACID's Mediate To Resolve service gives access to a quicker, cheaper and better means of resolving problems. My congratulations to ACID for this vital piece of work and all they do to improve their service."

To find out more, visit www.acid.uk.com