One of the trickiest clauses to draft in a commercial contract or terms and conditions is the dispute resolution provision. That is because no party to a commercial transaction wants to think of the possibility of ever falling out with his customer, supplier or collaborator. Yet fall out they often do and unless they have provided otherwise they will find themselves in court where their dispute is in a queue and they find themselves spending money as though it's going out of style.
There is an alternative and that is to refer the dispute to some form of dispute resolution ("ADR"). I have set out the options in my article "Intellectual Property Dispute Resolution in the UK" 2 Nov 2011 J D Supra. Although a dispute can be referred to ADR at any stage - and there is a duty under the Practice Direction: Pre-Action Conduct to consider ADR which I discuss in my leaflet "IP Dispute Resolution in England and Wales: why sending a US style 'Cease and Desist Letter' or old style 'Letter before Action' may not be a good idea" 13 Jan 2012 J D Supra - it is considerably easier if there is already a dispute resolution provision in place.
These clauses can be very simple. A typical mediation clause would be as follows:
"Any dispute or difference between the parties will be referred to mediation in accordance with the NIPC Mediation Rules by a mediator agreed by the parties or, in default of agreement within 14 days appointed by the Managing Director of NIPC Ltd."
Often these are combined with an arbitration clause:
"(1) Any dispute or difference between the parties shall be referred to arbitration before a single arbitrator agreed by the parties or, in the absence of agreement within 14 days of the reference, appointed by the managing director of NIPC Ltd.
(2) The seat of the arbitration will be England and Wales,
(3) The NIPC Arbitration Rules will apply."
Click the following links for the NIPC Mediation Rules and fees and the NIPC Arbitration Rules and Fees. NIPC Arbitration has recently been selected by three large US companies to operate their "safe harbor" dispute resolution scheme (see "NIPC Arbitration's 'Safe Harbor' Dispute Resolution Service" 2 Jan 2012),
There are now a large number of other mediation service providers in the United Kingdom. Those specializing in intellectual property are listed helpfully in a booklet published by the Intellectual Property Office. As counsel I have found those offered by the IPO (see "Practice: Mediation in the IPO", 2 Oct 2009) and the World Intellectual Property Office to be particularly effective. There are rather fewer specialist arbitration services. Judge Ford gathered a panel of arbitrators (of which I was one) for the Patents County Court in the mid 90s but apart from us there is only the WIPO.
Should anyone have a dispute that they wish to refer to mediation they should complete our mediation enquiry form. If they have a dispute they would like to send to arbitration they should complete our arbitration form. If you want to discuss either service you can call me on 0161 850 0080 or use my contact form. You can also contact me through Facebook, Linkedin, twitter or Xing.