For the unacquainted, there are three divisions of the High Court of Justice in England and Wales. Intellectual property (IP) disputes fall under the jurisdiction of the Chancery Division, which also lists a range of trusts, probate, real estate and insolvency cases.
In the U.K., the settlement of IP disputes by mediation remains relatively uncommon. This may be because very few U.K. practitioners, whether very experienced or newly qualified, or judges are introduced to alternative dispute resolution (ADR) (mediation or arbitration) during training. It is largely a matter of chance as to whether we experience it during practice.
Nevertheless, the Chancery Guide (which provides practical information as to how the judges and practitioners should conduct IP litigation, in conjunction with the Civil Procedure Rules) sets out rules about mediation.
In Chapter 18, under the heading of “The role of the court” (which actually sets out what legal representatives should do), it says:
“18.1 The settlement of disputes without a trial, by means of Alternative Dispute Resolution (“ADR”) can help litigants (a) to save costs, (b) to achieve settlement of their disputes while preserving their commercial relationships and market reputation and provide litigants with a wider range of solutions than those offered by the determination of the issues in the claim”.
In the next paragraph (18.2), the guide goes on to set out how the court can, and should, as part of the overriding objective to enable the court to deal with cases justly and at proportionate cost, encourage the parties to use ADR or otherwise help them to settle the case or resolve particular issues:
“There should normally be a discussion at the case management conference about what steps have already been taken (if any), and those which ought to [be] considered in future, to try to resolve the claim”.
In my experience, these requirements are more honoured in the breach. Were they to be followed, in many cases the parties would privately welcome such an enquiry by the judge—at the case management conference, before it or subsequently. Often a party will believe that suggesting a mediation (or indeed any sort of settlement discussion) would be interpreted by the other party as a sign of weakness. This they are disinclined to risk, even if it is recommended by their lawyers.
In the U.S. and certain other jurisdictions, the resolution of court disputes by mediation is far more common. Indeed, some courts are able to order that the parties mediate their dispute (for example, after a Markman hearing in a U.S. patent dispute) and report back within a certain time frame. I am not suggesting that U.K. judges do this. Just a gentle but firm enquiry in accordance with the Chancery Guide would benefit the parties and help relieve the trial judge’s workload.
The experiences other jurisdictions have in mediating IP disputes would, of course, be illuminating. But confidentiality makes data gathering difficult. I am keen to broaden this discussion, so I invite interested readers—fellow neutrals, judges and practitioners—to contact me with any war stories that might help illustrate the benefits and pitfalls of stronger advocacy of ADR from the bench.