Mediation Advice

Musings on a Mediation

Our clients were interested in long-running litigation concerning complicated questions of copyright. The proceedings concerned 10 parties, some with cross-claims against each other.

Mediation

There were multiple and complex legal questions and the arguments that would have to be decided in court included: Who was the real owner of the copyright? Had joint authorship existed? Had they been copying there? If so, what was the exact scope of the copying? Was ‘look and feel’ close enough to create copying? To what degree has the Navitaire Inc-v- Easyjet (No3) 1725 (Ch) (2005) ECC30 decision had an effect on the problems? It will also have to be adjudicated on the matter of directors’ individual accountability for any infringements by their firms, as well as on other very opaque issues of fact.

The sides had been in combat for five years and the trials had been going on for about 18 months. The proceedings had reached a critical point, and it was predicted that a 10 to 15 day trial would take place within 12 to 18 months.

A stay of proceedings was granted by the High Court to allow the parties to try, by mediation, to resolve their differences.

The Outcome

The Mediator (himself a highly regarded copyright barrister) commented at the outset that if the case went to trial, it was difficult to foresee the result as there were at least 64 potential permutations.

It was a long and complicated 15-hour mediation in which, it can be reliably confirmed, the parties shared their opinions, and eventually created a settlement with which all the parties were willing to live.

There would certainly have been a verdict in favor of some and against others if the case had went to trial, but it is unlikely that any simple absolute winners would have existed.

At the mediation, a little bit of’ thinking out of the box’ meant that the ideas pursued by the parties culminated in a settlement agreement that gave everybody something. Most significantly, from the point of view of our clients, there was no longer a possibility of an injunction that might have restricted their company and, overall, the parties came out of the mediation with mutual honours.

The projected costs of taking the cases from the stage at yet they were on trial to the parties were £250,000 to £300,000. The mediation cost was significantly less than one-tenth of this figure.

As they say, it was a “no brainer”.

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