WIPO Checklist for the Online Conduct of Mediation and Arbitration Proceedings

Preliminary Considerations

1)  Do the WIPO Mediation, Arbitration and Expedited Arbitration Rules (WIPO Rules) address the online conduct of proceedings?

Yes, the WIPO Rules allow parties, mediators and arbitrators to conduct proceedings online as appropriate (Article 10 WIPO Mediation Rules, Article 37(a) WIPO Arbitration Rules, Article 31 (a) WIPO Expedited Arbitration Rules). In addition, mediators and arbitrators have the duty to ensure that proceedings take place with due expedition (Article 11 WIPO Mediation Rules, Article 37(c) WIPO Arbitration Rules, Article 31(c) WIPO Expedited Arbitration Rules). In the WIPO Center’s case experience, this has included the online conduct of mediation meetings and arbitration hearings.

Pursuant to Article 40 WIPO Arbitration Rules/Art. 34 WIPO Expedited Arbitration Rules, the preparatory conference can be held in any format; in practice, it normally is conducted via telephone, videoconference, or increasingly using online tools.

2)  Is it possible to conduct WIPO Mediation and Arbitration proceedings in a hybrid format?

Yes, the WIPO Center has administered some proceedings where some parties, mediators, or arbitrators participated in meetings or hearings in-person while others joined through online tools.

Choice of Online Platform

3)  Are parties, mediators and arbitrators in WIPO proceedings free to choose the online platform they wish to use for their proceedings?

Yes, parties, mediators and arbitrators are free to agree on the online platform(s) they wish to use. In WIPO mediations and arbitrations, this has included the use of WebEx, Zoom, Teams, Bluejeans, WhatsApp, and Skype for Business.

4)  Does the WIPO Center provide an online platform to parties, mediators and arbitrators for proceedings?

Yes, the WIPO Center makes available to parties, mediators and arbitrators, at no cost, secure access to WebEx to conduct their proceedings online. This includes WIPO technical assistance in the set-up, preparation, and conduct of meetings and hearings.

5)  Does the WIPO Center provide any additional online tool to assist parties, mediators and arbitrators in WIPO proceedings?

Yes, the WIPO Center makes available to parties, mediators and arbitrators, at no cost, WIPO eADR in order to securely submit electronic communications and documents into an online docket. This case management tool enables parties, mediators, and arbitrators in WIPO proceedings to share and access all case-related information through a single and secure portal.

6)  What functionalities should be considered by parties, mediators and arbitrators when selecting a platform?

The WIPO Center’s mediation and arbitration experience shows that, depending on the case, certain functionalities should be considered when preparing for online proceedings, including virtual break-out rooms, screen-sharing, as well as chat, private room, waiting room, and recording/transcript functions.

7)  Can mediators and arbitrators be the “host” in WIPO-organized online proceedings?

Yes, following the set-up of the meeting or hearing by the WIPO Center, the “host” function can be transferred to the mediator or the arbitrator as agreed with the parties.

8)  Should parties, mediators and arbitrators run test sessions prior to meetings and hearings in online proceedings?

Yes, it is useful for parties, mediators and arbitrators to run one or several test sessions to check the features of the selected platform including issues such as internet connectivity, hardware used by participants, video and audio quality, and the functionalities of the platform used. In WIPO-organized online proceedings, the WIPO Center assists parties, mediators and arbitrators to organize such test sessions to make sure that the features of the selected platform address their needs in each specific case.

9)  Beyond the platform’s functionalities, which other criteria may parties, mediators and arbitrators wish to consider in connection with the choice of platform?

Data protection and confidentiality issues may be considered too. The WIPO Rules contain specific provisions regarding the confidentiality of WIPO proceedings (Articles 75-78 WIPO Arbitration Rules, Articles 68-71 WIPO Expedited Arbitration Rules, and Articles 15-18 WIPO Mediation Rules). For more information on the protection of personal data in WIPO proceedings please see here.

Other Issues

10) Should parties, mediators and arbitrators adapt the schedule of meetings and hearings to the specificities of online proceedings?

Yes, in some remote WIPO online proceedings, parties, mediators and arbitrators have tailored the schedule of meetings and hearings to certain requirements of the online format, and the locations of the parties. For example, some mediation meetings were organized in two or three half-day sessions spread over several days or weeks, rather than a full-day meeting. Generally, the WIPO Center notes that the online conduct of mediation proceedings normally has a positive impact on the time-and-cost efficiency and settlement rate.

11) Can interpreters, court reporters, and other participants take part in online proceedings?

Yes, some online proceedings conducted in several languages involved live interpretation. Court reporters and stenographers also have participated in online arbitration hearings.

12) Should mediators and arbitrators provide further guidance concerning the organization of online proceedings?

Following consultations with parties, mediators and arbitrators may wish to consider issuing guidance to define some key aspects of the online proceedings. In online WIPO cases, such protocols have addressed issues relating to the selected platform(s) (e.g., choice of platform(s), functionalities, identification of the “host”), back-up options in the event of dysfunctionalities, the establishment of timelines for meetings, an undertaking from the parties not to allow the presence of any other participants at their location than those that had been pre-announced, display of image of all participants at meetings, the (non-)recording of meetings (see Article 15 WIPO Mediation Rules), and data protection.

For further questions regarding WIPO videoconferencing facilities, please contact the WIPO Center by email to arbiter.mail@wipo.int or telephone at +41 22 338 8247.