Mediation

Introduction

Mediation is a flexible and non-binding procedure, in which a neutral intermediary, the mediator, assists the parties in reaching a mutually satisfactory solution to the dispute.[1] Any settlement reached during mediation is formalized in an enforceable contract. Mediation is an efficient and cost-effective way of achieving that result while preserving, and sometimes even strengthening, the relationship of the parties.

Key characteristics

Key characteristics of mediation include its non-binding nature and party control. A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator’s role is, rather, to assist the parties in reaching a settlement of the dispute. Even when the parties have agreed to submit a dispute to mediation, they are free to withdraw from the process at any time if they find that it no longer serves their needs. If they decide to proceed with the mediation, the parties and the mediator mutually decide on how it should be conducted. Unlike court proceedings, which are carried out in accordance with predetermined rules of procedure, a mediation can operate in a more informal and expeditious manner and can be customized to address the needs of the disputing parties. In addition to their decision on whether to submit a current or future controversy to a mediation procedure and their selection of a mediator with appropriate qualifications, parties can determine other important elements, such as the language and the place (physical or virtual), in which the procedure is going to be held.

Confidentiality is fundamental in mediation. Parties are not compelled to disclose confidential information, and any disclosures made are protected and cannot be provided to anyone outside the context of the mediation – including in subsequent court litigation or arbitration, when applicable. Moreover, under the WIPO Mediation Rules,[2] the very existence and outcome of the mediation are also kept confidential. This allows parties to negotiate free from concerns about public disclosure.

Mediation is an interest-based procedure, allowing parties to consider not only legal factors but also their broader business interests.[3] As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. By focusing on mutual interests and engaging in dialogue, mediation often yields solutions that generate more value than continued conflict. When successful, mediation culminates in a settlement agreement.

The United Nations Convention on International Settlement Agreements Resulting from Mediation – also known as the Singapore Convention on Mediation – officially opened for signature in August 2019. Since then, it has been signed by 56 countries and 13 countries have ratified it.[4] The Singapore Convention allows disputing parties to apply directly to the courts of a state that has ratified the Convention and ask for the enforcement of an international settlement agreement resulting from mediation, without needing to initiate afresh court proceedings (Article 4 of the Singapore Convention). It is, therefore, an important development toward achieving the global enforceability of mediation settlement agreements.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Even when a settlement is not achieved, mediation never fails, as it helps clarify the facts and issues of the dispute, preparing the ground for potential future arbitration or court proceedings.

The experience of the WIPO Arbitration and Mediation Center (WIPO AMC) helps to support this perspective. To this date, once engaged in mediation, 70% of procedures administered by the WIPO AMC culminate in a settlement agreement. Even in arbitration, 33% of WIPO cases settle before any final decision has been issued.[5]

In 2021, the WIPO Arbitration and Mediation Center (WIPO AMC) published the WIPO-MCST Survey Report on “Alternative Dispute Resolution Mechanisms for Business-to-Business Digital Copyright and Content-Related Disputes”.[6] The Survey Report draws on more than 1,000 responses from a wide range of stakeholders[7] in 129 jurisdictions of all regions and provides some insights into the qualitative and quantitative features of disputes in the video gaming industry, including esports. The WIPO Survey showed that 77 per cent of the respondents who had been involved in video games disputes, including esports disputes, indicated that when faced with a contractual digital copyright- and content-related dispute, resorted to court litigation in their home jurisdiction. The second most preferable dispute resolution mechanism was mediation and/or conciliation (47 per cent), followed by arbitration (37 per cent). These percentages can be summarized as follows:

Table I: Dispute resolution mechanisms in contractual disputes

The results are shown as the constituent percentages of the total number of respondents, who were involved in video games and esports, as well as in other digital copyright and content-related disputes. Respondents could select multiple options.

When it comes to non-contractual disputes, the situation is not so different. The experiences of the survey respondents who had been involved in video games or esports disputes showed that the most frequent mechanism used for resolving non-contractual disputes was notice and takedown (77 per cent). The second most preferable dispute resolution mechanism was court litigation in their home jurisdiction (67 per cent), followed by mediation and/or conciliation (44 per cent), and arbitration (23 per cent). An overview of the different types of dispute resolution mechanisms in non-contractual disputes and their percentage is shown in the below table:

Table II: Dispute resolution mechanisms in non-contractual disputes

The results are shown as the constituent percentages of the total number of respondents, who were involved in video games and esports, as well as in other digital copyright and content-related disputes. Respondents could select multiple options.

A close reading of the above breakdowns reveals the growing recognition and utilization of mediation for resolving disputes withing the video games industry, including esports. In both contractual and non-contractual disputes, mediation emerges as a popular choice among stakeholders.

[1] WIPO, ‘What is Mediation?’ <www.wipo.int/amc/en/mediation/what-mediation.html> accessed 20 March 2024

[2] WIPO, ‘WIPO Mediation Rules (Effective from July 1, 2021)’ <www.wipo.int/amc/en/mediation/rules> accessed 20 March 2024

[3] L Shmatenko and B Campara-Kopeinig, ‘«Ready? Fight!» – Player vs. Player im eSport’ (2023) Fokus Sport – Das Recht, 2

[4] Singapore Convention on Mediation, ‘Jurisdictions’ <www.singaporeconvention.org/jurisdictions> accessed 20 March 2024

[5] WIPO, ‘WIPO Caseload Summary’ <www.wipo.int/amc/en/center/caseload.html> accessed 20 March 2024

[6] World Intellectual Property Organization (2021), ‘Alternative Dispute Resolution Mechanisms for Business-to-Business Digital Copyright and Content-Related Disputes’, available at www.wipo.int/publications/en/details.jsp?id=4558.

[7] The survey was addressed to a wide range of stakeholders, including copyright- and content-intensive companies of all sizes, online intermediaries and platforms, creators, entrepreneurs, collective management organizations, in-house and external counsel, copyright offices and other government bodies, judges, museums and international organizations.