2.6.10 Alternative dispute resolution
Under the legislation and court rules of the Federal Court, there are mechanisms by which parties may elect to participate in, or be referred by the Court to, a number of alternative dispute resolution (ADR) processes. Further, under the court rules, the parties are required to “consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable.”103
The court may refer the entire proceedings or part of a proceeding to mediation (or arbitration).104 In patent litigation in Australia, mediation is far more common than arbitration. This may reflect the fact that an arbitrator cannot revoke a patent. Alternatively, the parties to the proceedings may also make an application to the court for an order to be referred to mediation or arbitration.105 Parties may also arrange for ADR processes to be initiated with a private mediator outside of the court proceedings, although if this is the case, the parties are obliged to seek directions regarding the case management of the proceedings from the court.106
In some cases, the entire patent infringement or validity case may be referred to a form of ADR early in the proceedings. However, parts of the proceedings may be referred to ADR. For example, an interlocutory dispute between the parties regarding the scope of discovery or the quantum of costs may be referred to mediation, to be conducted by a registrar of the court acting as mediator.
If a proceeding is referred to mediation or arbitration, and the parties do not nominate a mediator or arbitrator, a registrar of the Federal Court may be nominated to conduct the ADR process.107 The registrars are trained in ADR processes and regularly act as mediators in court–facilitated mediations, including in patent matters. The Federal Court’s Central Practice Note explains:
Where appropriate, the ADR skills of registrars will be drawn on by the Court to help parties resolve issues (whether substantive or procedural) at the earliest and most effective stage of the proceeding and the Court will utilise its technology and innovative meeting arrangements to help to conduct ADR processes in an efficient and cost-effective manner.108
As a result of the COVID-19 pandemic, there has been increasing use of videoconferencing platforms by the Federal Court, and this technology has been used to facilitate mediations conducted by registrars of the court. Generally, these mediations are conducted on the Microsoft Teams videoconferencing platform, and parties are given access to a joint meeting room (where all parties and the registrar will meet concurrently) as well as individual party meeting rooms (which are used by individual parties to confer during the course of the mediation).
Where mediation is to be conducted by a registrar of the court, the parties may be asked to prepare a nonconfidential position statement (which is exchanged between the parties) and a confidential report (which is shared only with the registrar, on a confidential and without-prejudice basis). Generally, the nonconfidential position statement will set out, at a high level, the parties’ arguments on the disputed issue, and the confidential report to the registrar will set out confidential information regarding the parties’ assessments of their prospects, costs and other objectives that may be relevant to the mediation.
Mediations conducted by registrars of the court are typically listed for one day, although if the dispute is not resolved, the registrar may extend that period. The parties may be represented by their legal representatives (including their solicitors and barristers). The party will generally also need to have an officer or employee of the party present at the mediation who has authority to agree to any settlement during the mediation. The Central Practice Note of the Federal Court explains:
When attending mediation, parties and their legal representatives must attend for the purpose of participating in good faith negotiations and must have the ability, in a practical way and with flexible instructions, to participate meaningfully in negotiations with a view to narrowing the issues in dispute and reaching a mutually acceptable resolution between them by way of compromise.109