How to plan successful IP mediation

Today, there are many mediation providers who specialize in IP matters. One is the World Intellectual Property Organization Arbitration and Mediation Center (WIPO AMC). It reported a 42% increase in cases administered under its rules in 2025, compared to 2024. These instances covered various areas of IP, including copyright and digital content (51%), trademarks (31%) and patents (9%). Highlighting the attractiveness to non-corporates, it was seen that small and medium-sized enterprises (SMEs) and individuals accounted for 59% of parties involved in these cases. 

In the past few years, new conciliation opportunities have arisen, particularly within the European Union. For example, the European Union Intellectual Property Office (EUIPO) launched its Mediation Centre in November 2023, with services expanded in June 2025 to cover all inter partes proceedings relating to EU trademarks and registered EU designs. Additionally, in June 2026, the Patent Mediation and Arbitration Centre of the Unified Patent Court will be inaugurated, providing a new forum for alternative dispute resolution (ADR) in Europe.

What it means to work out differences

Simply put, mediation is a process whereby a neutral, expert mediator assists parties to reach an agreement between them. It is a structured but flexible procedure and can be conducted in person or remotely in the language (or languages) of the parties' choosing. This kind of ADR can be mandated in an agreement between business partners or can be proposed by one or both parties when contention arises. Unlike court proceedings, this peacemaking takes place entirely behind closed doors, and it is generally less adversarial. 

In an IP context, formalized discussion can be used for everything ranging from friction with employees, suppliers or contractors to complex cases involving validity and infringement of rights and related issues such as valuation and competition law. As they are not constrained by court procedures, intercessors may be able to address multiple issues in different jurisdictions and propose creative commercial solutions that are designed to benefit both sides. 

While the discussions themselves may last as little as a few hours or as long as several weeks, the whole process (including preparation, appointment of a mediator, proposals of solutions and informal meetings) may take many months. It is essential, therefore, to be well prepared to ensure you can reap the benefits of sitting around the table.

Know your goals

The first priority for any organization is to identify and articulate the desired outcome of conciliation. These goals could be legal, industrial or both, but it is critical that they are agreed and understood internally.

However, while clarity over intentions counts for much, it is also necessary to remember that one of the features of mediation is that it can deliver novel solutions. Thus, when establishing the objectives, it may be helpful to divide them into non-negotiables on one hand and issues on which some compromise can be made on the other. It may also be beneficial to reflect on what the other side's aims are and what impact these might have on your own strategy. 

This approach will ensure the best chances of achieving a positive outcome.

Example: An established business, "BigCo," discovers that a new company, "StartUp2.0," has recently launched a product that infringes its IP rights. While Startup2.0 does not have much market penetration yet, it could roll out products quickly, and its fortunes could embolden other competitors. BigCo does not want to be seen as a bully and would prefer to avoid the publicity of litigation. If StartUp2.0 recognizes the validity of the prior rights and agrees not to infringe them, BigCo may agree to grant an IP license in return for royalty payments covering certain products and jurisdictions. Seeking damages for past infringement is desirable but not a priority. 

Define responsibilities

As soon as mediation is put forward, it becomes appropriate to determine who would be involved – both internally and externally. This may require some discussion, especially for larger companies: Internal representatives should have authority to make decisions, which may require the participation of directors and / or senior executives, but they must also have knowledge of the dispute's history and be able to devote sufficient time to proceedings. External representatives may include lawyers with various corporate law specialisms, patent and / or trademark attorneys, as well as independent experts. Factors of team size and composition are more deterministic than their obviousness would suggest, as the knowledge base must encompass all the topics at hand without introducing a headcount that is too big for efficiency and cost reasons.

Talks can move fast, and it may be necessary for the negotiators to respond quickly to proposals from the other side and / or the mediator. They can only do this if they have a proper grasp of the nature of the relevant products and technology, the overall commercial objectives and the range of acceptable conclusions. It is crucial, then, that the participants are fully briefed at the outset.

Example: A fast-growing high-tech company, "TechBoom," has a detailed agreement to license certain IP rights in software from an individual developer, "Iris Inventor." However, Iris has complained that TechBoom's latest developments are not covered by the license and infringe her rights. The agreement includes a mediation clause. When preparing, TechBoom chooses a team comprising a director who understands the overall business aims, an executive who was involved in the early stages of the collaboration and the in-house IP attorney. It elects to appoint an external counsel who is known for taking a conciliatory, innovative approach rather than its usual litigation specialist.

Select evidence and other materials

Careful thought should be given to compiling and presenting evidence for use. Unlike in litigation, parties have wide scope regarding what documents they introduce, and these should be chosen conscientiously since you want to put forward your strongest arguments without jeopardizing the efficiency of the process.

A "less-is-more" methodology may be most effective in negotiation, but it is critical not to overlook anything that might be relevant to a favorable result. Key papers may include contracts, licenses and agreements between the parties, as well as comparables with other parties, financial data and historical records demonstrating the acquisition, assignment or licensing of IP rights.  

When deciding which records to share, attention should be paid to confidentiality. While anything disclosed in the process is kept between the parties and the mediator, there may be items that are particularly sensitive, where extra precautions are necessary. It may therefore be useful to obtain external legal advice on whether certain documents should be held back, redacted or only made available to named individuals. 

Example: A leading research institute, "Geek Labs," has an extensive patent portfolio and has agreed licenses with many manufacturers. It is in mediation with a prominent manufacturer, "Top Products," to finalize licensing terms. As well as evidence of its patent rights and research publications, Geek Labs has extensive confidential information and market-sensitive agreements with other manufacturers. In order to respect the concealment requirements of these third parties, Geek Labs asks its lawyers for advice on whether it can disclose this information only to the mediator, Top Products' external advisers and / or certain named individuals at Top Products. 

Keep control of the process

While mediation will likely be cheaper than litigation, it is nevertheless important to plan a budget and allocate resources fittingly. Costs include the fees to pay for the mediator, venue and external advisers, as well as business outlays, such as management time, travel expenses, potential delays in booking revenues and other disruptions pending the closure of procedures.

By setting priorities, assembling strong teams, preparing documents and planning budgets, parties give themselves the best chance of a welcome conclusion to mediation, while avoiding unnecessary losses and distractions. As ADR looks set to become more common in a range of conflicts involving intellectual assets, these are steps that all IP-intensive businesses should bear in mind as a course of action or a flexible pragmatism where quarrels or unexpected opportunities arise.

A version of this article first appeared in WIPR Review, Issue 1, 2026.