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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.). “A process” not “a meeting” Definitions

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Presentation Transcript
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Conference on Dispute ResolutionIn 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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“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

What is Mediation

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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

Goals of Mediation

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Written terms are a contract

Can become an Arbitrator’s 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)

Enforcement

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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

Role of the Mediator

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By The Parties

By An Organization (WIPO)

Selecting The Mediator

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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

Standards of Conduct

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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

Qualifications

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Introduction

By Mediator

Confidentiality

All decision-makers present?

Set tone

By Parties

Opening statement

Issues

Identify / Clarify / Analyze

Interests

Identified

Shared / Compatible / Conflicting

Stages of Mediation

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Generate alternatives

Separate inventing from evaluating

Synergy of ideas

Evaluate

Establish legitimacy

What’s fair?

Develop Fairness Criteria

Stages of Mediation

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Commitment

Realistic terms

Durable

Satisfies interests

Legitimate

Elegant simplicity

Written agreement

Enforceable

Stages of Mediation

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What Mediation Looks Like

WhatMediation Looks Like

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Room A

9:00 a.m.

M

M

= Mediator

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Room A

11:00 a.m.

M

Room B

M

= Mediator

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Room A

M

1:00 p.m.

Room B

M

= Mediator

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Room A

4:00 p.m.

M

M

= Mediator

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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

Role of the Parties

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Prepare the Client(s)

Interest / Priorities / Feelings

Prepare the Mediator

Briefs / Pre-mediation Conference

Generate Options and Evaluate

Advise Clients

Prepare Documents

Role of Counsel

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UNCITRAL

Make proposals for settlement at any stage of the conciliation

AAA

Article 13(a) and (b) WIPO Mediation Rules

Mediator’s Proposal

If / When

Investigator - ExpertsOslo Chamber of Commerce

“The Mediator, in cooperation with the Parties, shall see to it that an Agreement is made.”

Impasse

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Term Sheet

e.g.: License fees for how long;

Escalating payment structure

Formal Agreement

Fill in the Blanks

Settlement Documents

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Reduce uncertainty

Preserve relationship

Confidential

Rules

e.g. Article 14 to 17 WIPO Mediation Rules

Contract

Court

Cost effective

Efficient

Why Mediate?