9.6.17 Alternative dispute resolution
Throughout any proceedings, including patents proceedings, the court expects the parties to investigate alternative dispute resolution (i.e., explore whether their dispute can be settled out of court). If a party in proceedings invites the opposing party to participate in alternative dispute resolution, and the opposing party either refuses to participate or greets the invitation with silence, the court may well consider this to be unreasonable and penalize the opposing party in costs in some way.
The most common method of alternative dispute resolution that occurs during proceedings is mediation. All settlement discussions between the parties, including proposing, setting up and conducting a mediation, should be “without prejudice save as to costs.” This means that they are confidential and cannot be disclosed to the court during the proceedings until the point is reached where the court is considering what award of costs to make.
Mediation in these circumstances is typically arranged for a day with the parties exchanging short written mediation statements beforehand, which, as well as setting out their position in relation to the proceedings, provides an offer of settlement that they would be prepared to accept – effectively, their opening offer. The mediator is selected and agreed to between the parties, and the mediator’s costs and any mediation venue costs are typically shared equally between the parties.