Just over a fortnight ago I was able to mediate a settlement of a trade mark dispute. “Where’s the novelty in that?” some will ask. The answer is that the dispute was an opposition in the Trade Marks Registry rather than an infringement claim in court. Because it was in the Registry, the risk of having to pay enormous sums of money to the other side by way of costs or, conversely, the hope of recovering enormous sums towards one’s own costs from the other side, was absent. Annex A of Tribunal Practice Notice No. 2/2000 (Costs in Proceedings before the Comptroller) limits the risk where there is a hearing to a few thousand pounds. Where the decision is made on paper, the award can be less than a thousand.
It is the threat of costs that drives mediation in civil proceedings. In the Registry, parties still have some incentive to settle in that they can save time and, indeed, their own agents’ fees, but there is a lot less pressure. Because of that absence of pressure, there is a limit to what mediators can charge for their time. That in turn no doubt explains why so few cases are actually referred from the Registry notwithstanding para 6 of TPN 1/2000 which requires hearing officers routineley to ask parties whether they have considered “ADR”.
The reluctance of hearing officers to refer is a pity because many oppositions, applications for declarations of invalidity and revocations are made for mediation. The case I helped settle was an example. I can say from my experience as counsel that it was far from unique. The dispute arose because a business (that consisted of making and selling a consumer product) was divided into two. The manufacturing side was sold to one party and the retailing side was sold to another. Both the person who bought the manufacturing side and those who bought the retailing side felt they needed to use a sign that had been used by their vendor when he operated the two businesses as one. The problem was that the manufacturer wanted to put the sign on goods that were to be sold to other shops and the retailer to use it on goods to be sourced from other manufacturers.
I am glad to say that by the end of the day a solution satisfactory to all was found. In that regard I was fortunate to have reasonable business people before me. I was also lucky that both sides were represented by very able and experienced trade mark agents.
Because of the costs limitation of Annex A of TPN 2/2000 mentioned above, I limited my fee to £500 for the day however long it took. My only stipulation was that one of the trade mark agents would host the mediation at its offices and provide the facilities that I required. These were
- a room big enough for both sides and their respective agents and counsel,
- side rooms to house comfortably each of the parties,
- flip charts and plenty of paper in each of the rooms (Colin Wall and Robyn Hooworth, who taught me, are great ones for flip charts),
- a generous choice of butties, cakes and fruit for lunch, and
- copious supplies of tea, coffee, mineral water andbiscuitss for all concerned at all other times.
Mediation works because the mediator gains insight into the dynamics of the dispute that are not obvious to the parties or even their professional representatives. Barristers have been doing that sort of thing in robing rooms for years. IMHO, it is the best and possibly only valid argument for keeping a divided legal profession. In mediations, we get insight into the dynamics of a dispute through caucuses – that is to say, private interviews with each party to see what is really important to him or her and what is not and what solution to the dispute he or she could live with.
In mediation training, we learn all sorts of tricks, like “re-framing” to take away the sting of an injury or insult (real or imagined), and “reality checking”, to keep a party tethered to the ground. A good example of reframing is where an insinuation by an employer that his employee is pilfering is turned by the mediator into a generalized observation “So, Fred, you were concerned about stock control.” Reality checking requires even more tact to avoid undermining legal advice from a professional representative that the mediator desperately needs as an ally.
Does mediation work? The figures published regularly by CEDR certainly suggest it does, though I have to say that willingness to mediate usually betokens willingness to settle. On the other hand, it has to be remembered that even mediations that fail on the day often set off negotiations that result eventually in a resolution. At the very least, mediations reduce the number of issues that are eventually tried by the court or other tribunal and thereby pay for themselves in costs saved. It is not a cure all but there are not many cases where it should not at least be considered.