The day’s final session was Resolving Disputes with ADR featuring Eduardo M. Machado (Montaury Pimenta, Machado & Lioce Advogados) and speakers Jose Barreda (Barreda Moller), Katrina Burchell (Unilever PLC), and Gregory P. Giula (Duane Morris LLP).

Moderator Eduardo M. Machado noted at the outset that the session would focus specifically on Trademark Mediation in the United States, Latin America, and E.U. Speaking first was Gregory P. Giula who noted that when done at the correct stage, mediation could be a cost-saver, could provide the parties with a mediator with specific technical expertise, may or may not be applicable for certain practical issues (e.g., injunctions, venue, or the scope of protection for a mark), provides the parties with a certain degree of flexibility (e.g., re: discovery, timing of proceedings), is often time-efficient (e.g., the mediation can be conducted on an expedited basis), and importantly, the confidentiality of he proceedings (as opposed to judges who may be reluctant to issue confidentiality orders). Mr. Giula also highlighted that where parties seem willing to settle, mediation through a trained mediator may be particularly applicable and often bears much more fruit than counsel or parties simply picking up the phone to discuss the matter. Still, he noted several possible disadvantages, namely, lack of formal (i.e., binding precedent) award, scope of discovery, the fact that the parties may “walk away” at any time, potentially a less thorough review of the facts and law, lack of damages, lack of provision for attorney fees.

Speaking next was Jose Barreda who noted that in some Latin American courts, mediation is required by courts as a preliminary step to resolving a dispute. He curiously noted that mediation had no formal constitutional support, and may not be enforceable, but is rather a suggested solution, and may not have effect as to use of a mark in commerce (where e.g., an injunction to prevent certain uses would be preferred). Mr. Barreda closed by noting that parties typically would not use mediation, but would instead use a “mock arbitration” which is then passed on to applicable legal authorities who would follow the finding.

Speaking on the E.U. perspective, Katrina Burchell noted that arbitration was far more prevalent than mediation (as there is a distinct lack of demand for trademark mediation) in that practitioners might have a lack of expertise using and/or conducting mediation (except e.g., for compulsory mediation under the Nominet domain name dispute policy). She noted that the U.K. IPO offered a mediation service, and that party demand seemed to be increasing. She also noted that there was a pending E.U. Mediation Directive which would: place an obligation on member-states to train qualified mediators who would adhere to a single code, provide the judiciary with mechanisms to mandate mediation, potentially have the force of law (e.g., as a court order), remain confidential. She did note that the Directive left open whether mediations conducted outside the E.U. would have effect in the E.U., and whether the mediator could later be called as a witness in future disputes. Ms. Burchell next noted certain points which may or may not make mediation attractive especially from an in-house perspective, namely the cost (which in non-U.S. countries may be similar to litigation as there is no discovery in either mediation or litigation), outcome, confidentiality, “win-win” scenario, facilitation of negotiated settlements, and consumer / shareholder perspective for respect of law / mark strength. She also addresses that certain cultures may be more or less willing to mediate.

Fielding questions from the audience, the panel noted that as to controlling the mediation, the parties could carve out the intended scope of the mediation at the outset to direct the mediator. Moreover, it was noted that fundamentally, there may be two types of mediations, namely, an evaluative type (where a mediator is making suggestions rather than teasing out negotiations from the parties) and a facilitative type, the former of which may make it appropriate for a party to walk away. The panel also noted various hybrid forms of mediations / arbitrations including “neutral evaluation.”