Conference on Dispute Resolution In International Science And Technology Collaboration

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Conference on Dispute Resolution In
International Science And Technology
Collaboration
Conference on Dispute Resolution In
International Science And Technology
Collaboration
Hon. Alice D. Sullivan (Ret.)
Hon. Alice D. Sullivan (Ret.)
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What is Mediation

• A process not a meeting
• Definitions
• Mediation is a process in which an impartial
  third party facilitates communication and
  negotiation and promotes voluntary decision
  making by the parties to the dispute.
• Problem solving negotiation
• Facilitated legal negotiation

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Goals of Mediation

• Interest Based
• Priorities - Create Value
• Not position based
• Enlarge The Pie
• More Choices Than Court/Legal Determination
• Identify and Meet Underlying Interests
• Repairing/Restoring the relationship
• More business to be done?
• Self-Determined Resolution of Parties
• Voluntary, un-coerced

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Enforcement

• Written terms are a contract
• Can become an Arbitrators Award
• Stockholm Chamber of Commerce
• Request to confirm the settlement agreement in an
  arbitral award
• WIPO Rules
• Consent Award - Article 65 WIPO Arbitration Rules
• International enforcement
• NY Convention on the Recognition and Enforcement
  of Arbitral Awards (Treaty)

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Role of the Mediator

• Neutral / Impartial
• What is neutrality in a cross-border dispute?
• UNCITRAL Third country
• China One from each country joint resolution
• Geography Location of the mediation
• Facilitator In Charge of the Process
• Improve Communication
• Promote Voluntary Decision Making

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Selecting The Mediator

• By The Parties
• By An Organization (WIPO)

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Standards of Conduct

• Disclosure / Rules
• A relationship that might create the appearance
  of bias
• Pre-Hearing Ex Parte
• The Shape of the Table
• Who / When / Where / What Issues

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Qualifications

• Process Expertise or Subject Matter Expertise
• Experience, Training, Certification, Panels,
  Language, Cost, Location
• Interpersonal Skills Communicator
• Establish trust with the Parties, between the
  Parties
• Empathetic listener
• Quick learner
• Creative
• Risk taker
• Tenacity

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Stages of Mediation

• Introduction
• By Mediator
• Confidentiality
• All decision-makers present?
• Set tone
• By Parties
• Opening statement
• Issues
• Identify / Clarify / Analyze
• Interests
• Identified
• Shared / Compatible / Conflicting

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Stages of Mediation

• Generate alternatives
• Separate inventing from evaluating
• Synergy of ideas
• Evaluate
• Establish legitimacy
• Whats fair?
• Develop Fairness Criteria

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Stages of Mediation

• Commitment
• Realistic terms
• Durable
• Satisfies interests
• Legitimate
• Elegant simplicity
• Written agreement
• Enforceable

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What Mediation Looks Like
WhatMediation Looks Like
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Room A
900 a.m.
M
M
Mediator
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Room A
1100 a.m.
M
Room B
M
Mediator
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Room A
M
100 p.m.
Room B
M
Mediator
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Room A
400 p.m.
M
M
Mediator
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Finished Document
600 p.m.
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Role of the Parties

• Attend With/Without Counsel
• Assert / Explain
• Documents / Charts / Diagrams
• Active Listening
• Listening to understand vs. Listening to respond
• Walking in their moccasins
• Generate Options
• Evaluate Options
• Decision Makers
• Prepare for a future without litigation

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Role of Counsel

• Prepare the Client(s)
• Interest / Priorities / Feelings
• Prepare the Mediator
• Briefs / Pre-mediation Conference
• Generate Options and Evaluate
• Advise Clients
• Prepare Documents

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Impasse

• UNCITRAL
• Make proposals for settlement at any stage of the
  conciliation
• AAA
• Article 13(a) and (b) WIPO Mediation Rules
• Mediators Proposal
• If / When
• Investigator - ExpertsOslo Chamber of Commerce
• The Mediator, in cooperation with the Parties,
  shall see to it that an Agreement is made.

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Settlement Documents

• Term Sheet
• e.g. License fees for how long
• Escalating payment structure
• Formal Agreement
• Fill in the Blanks

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Why Mediate?

• Reduce uncertainty
• Preserve relationship
• Confidential
• Rules
• e.g. Article 14 to 17 WIPO Mediation Rules
• Contract
• Court
• Cost effective
• Efficient

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