Question 1

What is mediation?

Accepted Answer

Mediation is an alternative dispute resolution mechanism in the framework of which the parties to a dispute attempt to settle the dispute by way of mutual agreement with the assistance and guidance of a qualified mediator, under full confidentiality.

Question 2

What is the difference between mediation and arbitration?

Accepted Answer

Arbitration is an alternative dispute mechanism that is similar in substance to court litigation.  Once the parties to a dispute submit, by agreement, to the proceedings of arbitration, the arbitrator has the authority to deliver a judgment binding on the parties after reviewing the evidence brought and arguments made respectively by the parties.
In contrast, mediation is a voluntary procedure in the sense that the mediator has no authority to resolve the dispute by way of a binding judgment or resolution but rather attempts to creatively assist and direct the parties towards the settlement of the dispute by way of a voluntary mutual agreement.

Question 3

Is mediation mandatory?

Accepted Answer

Mediation, in essence, is a voluntary proceeding. Mediation requires the free will agreement of the parties to submit the dispute to mediation and its continuation in all stages and to its final outcome by settlement, including the terms of such settlement.  It is true nevertheless, that in recent years courts tend to adopt an approach requiring the parties to claims, before initiation of actual court proceedings, to bona fide explore the possibility of dispute settlement by way of mediation, and that commercial lawyers increasingly draft mediation clauses in agreements in an attempt to eliminate, to the extent possible, the need for court litigation or arbitration as a means of dispute settlement.

Question 4

What are the advantages of mediation vs. litigation?

Accepted Answer

The advantages of mediation over litigation are numerous and include the following:
Confidentiality – Mediation is an absolutely confidential proceeding.  Nothing said, revealed or communicated in the framework of mediation may be subsequently disclosed or used by the parties and mediator in any way, including in the framework of litigation proceedings.  Under litigation – confidentiality is obtained only in rare instances and requires further proceedings.
 
Duration and Costs – while litigation proceedings tend to carry on for years, mediation commonly resolves disputes in a matter of weeks.  That naturally reflects on the costs of the proceedings.
 
Control and certainty – In litigation, the outcome of the proceedings is surrendered to the jurisdiction of the court and is therefore unpredictable and outside the control of the parties, whereas mediation requires the free will negotiations and agreement of the parties to apply for a binding settlement.
  
Flexibility – Mediation allows for dispute settlement by practical and business-like measures outside the boundaries and scope of the causes of action and remedies available under law and litigation.

Question 5

What are the most important factors to consider in technology-related mediation?

Accepted Answer

In technology-related mediation, it is essential that the mediator have the professional knowledge or immediate access to the professional knowledge required to understand the technological and IP aspects of the subject matter of the dispute. IP transactions specialists and patent attorneys would be ideal mediators in such cases.

Practice Areas

Mediation

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