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Technical factors to consider in deciding whether to litigate or use ADR

Dispute Resolution In International Science and Technology Collaboration David Rosenberg, GlaxoSmithKline April 26, 2005. Technical factors to consider in deciding whether to litigate or use ADR. Quality of resolution process Cost of resolution process Speed of resolution process

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Technical factors to consider in deciding whether to litigate or use ADR

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  1. Dispute Resolution In International Science and Technology CollaborationDavid Rosenberg, GlaxoSmithKlineApril 26, 2005

  2. Technical factors to consider in deciding whether to litigate or use ADR • Quality of resolution process • Cost of resolution process • Speed of resolution process • Confidentiality of the resolution process • Territorial considerations • Impact of the resolution process on future disputes

  3. What do the parties want - the business need driver • Do both parties want a win/win or win/lose? • Do both parties want a business or a legal resolution? • If either party really wants win/lose or legal resolution, litigation may well be the only way • If both parties want/are willing to try to reach a win/win business resolution, what is the best means of achieving this? • Can the best means of resolving the dispute be identified in advance or is it best identified in the context of the specific dispute?

  4. What drives the business need? • Whether there is an emotive element to the dispute – “theft” or “I no longer trust my partner” cases • Is vindication of position needed? – “I am right and I want the world to see it” • Is litigation needed to “prove I am strong”/ will ADR be seen as a sign of weakness by the other party or 3rd parties? • Will the dispute impact future commercial conduct or position of a competitor? • Is there an ongoing relationship which both parties wish to protect?

  5. ADR in IP agreements and disputes in the UK • Lambert Review of University-Business Collaborations and “Lambert Agreements” • www.dti.govt.uk/lambertagreements • Judicial encouragement of mediation before or during litigation in UK in future?

  6. GSK practice • Rarely have ADR clauses in agreements as reduce flexibility • De facto engage in informal ADR in most collaboration agreement disputes – seek to anticipate and resolve at business level (often before dispute crystallises) rather than litigate • Rarely litigate because in fact reach business-driven dispute resolution

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