"Mediaability" of disputes in the field of IP rights under Russian law

Intellectual property disputes can be complex and costly and often result in lengthy legal battles. To address this issue, many legal systems around the world have recognized the value of mediation as an effective means of resolving such disputes. Russia is no exception, and in accordance with Russian law, mediation is recognized as an alternative method of resolving disputes in the field of intellectual property.

Mediation is a voluntary process in which a neutral third party (mediator) helps the parties agree on a settlement to their dispute. The mediator does not make a decision or impose a settlement, but merely facilitates the negotiation process and helps the parties reach a mutually acceptable agreement. The mediator can also provide the parties with information and advice on the legal and technical aspects of the dispute, which can help in the negotiation process.

The possibility of "mediation" of disputes in the field of intellectual property is enshrined in the fourth part of the Civil Code of the Russian Federation, which covers intellectual property rights. Article 1252.1 of the Civil Code states that disputes related to intellectual property rights can be settled through mediation. In addition, Article 1262 of the Civil Code provides that the parties to the dispute may choose to resolve the dispute through mediation and that the mediation agreement reached between the parties will be legally binding.

The Russian Civil Code contains provisions that encourage the use of mediation in intellectual property disputes. Article 1261 of the Civil Code provides that the parties to the dispute must make good faith efforts to resolve the dispute through negotiations, and if the negotiations fail, the parties must consider using mediation. In addition, the Civil Code establishes specialized mediation centers for disputes in the field of intellectual property, which employ trained mediators with experience in the field of intellectual property law.

One example of a specialized mediation center in Russia is the Center for Intellectual Property Mediation and Arbitration (CMAC), which was established by the Russian Patent and Trademark Office. CMAC provides mediation services for a wide range of intellectual property disputes, including disputes related to patents, trademarks, copyrights and trade secrets. CMAC also trains mediators and offers educational programs for businesses and individuals interested in learning more about mediation.

From the scientific work of Khasan and Poleshchuk "Criteria of mediability of conflicts in legal practice B.I. Khasan, Y.O. Poleshchuk" the following generalizations about the concept of mediability should be made:

• The essential feature of mediation is its transparency; a mediator is only a means for organizing negotiations, mediation is a kind of negotiations and is appropriate only in a case recognized as negotiation;
• The chain of reasoning about recognizing a case as mediable should begin not with an alternative to litigation, but with an alternative to negotiations without a mediator.

As a result of B.I. Hasan and Yu.O. Poleshchuk identified 20 important circumstances for making a decision to open a mediation procedure:

1. For parties important confidentiality;
2. For the parties, an outcome other than a judgment is desirable;
3. Each of the parties has its own interest in the negotiations (the interdependence of the parties to the dispute);
4. There are no subcultural type restrictions that prevent specific negotiations;
5. The relationship of the parties is emotionally tense, which prevents productive direct interaction;
6. The subject of the dispute does not contain the risks of violating the prohibitions provided for by law;
7. The dispute has such characteristics that allow us to consider mediation as the preferred form of the court;
8. The parties have good will to an agreement (the desire of the parties to enter into dialogue and negotiate);
9. The parties have a resource for the implementation of agreements and joint decisions;
10. The parties do not master the techniques of negotiation, which hinders productive direct interaction;
11. The parties are able to negotiate on an equal footing (there are no sharp differences in power);
12. The parties want to resolve the situation faster and at lower cost than in court;
13. Judicial practice on the dispute is contradictory, prospects in court are unknown;
14. A particular mediator has an appropriate resource (enough professional and personal competencies to take on a case of this category of complexity);
15. The parties have an interest in good relations with each other in the future, their relations are of a long-term nature;
16. The parties have no intention of dragging out the trial, the parties are in good faith;
17. The parties do not have an attitude towards resolving issues of guilt, which makes it difficult to rationally interpret the conflict;
18. The parties show no signs of mental anomalies;
19. The nature of the dispute allows for positional variability within the interests of the parties (there are several possible solutions to the problem that satisfy the interests of the parties);
20. The escalation of the conflict has not crossed a certain threshold.

Mediation can be used to resolve a wide range of intellectual property disputes, including patent, trademark, copyright and trade secret disputes. Mediation can be especially helpful in cases where the parties are in an ongoing relationship, as it can help keep the relationship alive and avoid the costs and uncertainty of litigation. In addition, mediation can provide a more flexible and creative approach to dispute resolution than traditional litigation, as parties are free to explore a range of possible solutions to their dispute.

Summarizing the considered provisions on the medialability of conflicts in legal practice, it is worth noting the following (according to the study of B.I. Khasan and Yu.O. Poleshchuk):

• the system of criteria for medialability should be based on the criteria for negotiation and consistently consist of indications for mediation and obstacles to it;
• among the indications for mediation, in addition to recognizing the case as a negotiation one, it is necessary to single out the non-ownership of the technologies of negotiation processes and the acceptable threshold of interpersonal relations between the parties to the conflict;
• the following factors may be an obstacle to mediation: a high degree of escalation of the conflict, criteria related to the personal characteristics of the parties, and contextual criteria;
• an excessively high degree of conflict escalation (when it can be concluded that the case is unmedial) should be considered a threshold value exceeding the 6th stage according to F.Glasl (see Friedrich Glasl's conflict escalation model);
• the criteria-obstacles associated with the personal characteristics of the parties should include the attitude towards resolving issues of guilt, the inability to rationally interpret the conflict with the prospect of resolving it;
• contextual criteria include circumstances that are not related to the conflict situation itself and the personal characteristics of the parties, which have an external objective character (direct prohibitions, some restrictions of the subcultural type).

In conclusion, it should be noted that the "mediation" of disputes in the field of intellectual property in accordance with Russian law provides an effective and flexible way to resolve disputes, while promoting cooperation and maintaining relations between the parties. The Russian Civil Code contains a number of provisions encouraging the use of mediation to resolve intellectual property disputes, and there are many specialized mediation centers and organizations offering mediation services in Russia. Overall, mediation is a valuable alternative to traditional IP litigation in Russia and can help reduce costs, save time and preserve relationships between parties.

Source:

Hasan, B. I., Poleshchuk, Yu. O. (2020). Criteria of mediability of conflicts in legal practice. Bulletin of St. Petersburg University. Law, 11(1), 207-222. https://lawjournal.spbu.ru/article/view/4637