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Musings on a Mediation

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Our defendant clients had been involved in long-running proceedings involving complex copyright issues.  There were 10 parties involved in the proceedings some with cross claims against each other.

The legal issues were numerous and complex and the contentions that would have to be determined in court included: Who was the true copyright owner? Had there been joint authorship? Had there been copying? If so, what was the precise extent of the copying? Was similar ‘look and feel’ enough to establish copying? To what extent did the judgment in Navitaire Inc –v- Easyjet (No3) 1725 (Ch) (2005) ECC30 impact on the issues? The question of the personal liability of directors for any infringements by their companies would also have to be adjudicated as well as some very opaque issues of fact.

The parties had been in battle for 5 years and the proceedings on going for approximately 18 months. The proceedings had reached a critical point and it was expected that in 12 to 18 months time there would be a 10 to 15 day trial.

The High Court granted a stay of proceedings to permit the parties to try to resolve their differences by mediation.

The Outcome

At the outset, the Mediator (himself a highly-respected copyright barrister) commented that it was impossible to predict the outcome if the case went to trial as there were at least 64 possible permutations.

It was a long and difficult mediation lasting 15 hours and at which, it can be reliably said, the parties aired their views, and it in the end it produced a resolution that all of the parties could live with.

Had the matter gone to trial, there would probably have been a judgment in favour of some and against others, but it is unlikely that there would have been any clear outright winners.

A little bit of “thinking out of the box” at the mediation meant that the solutions adopted by the parties resulted in a settlement agreement that gave something to everyone. Most importantly from our clients’ point of view, there was no longer a threat of an injunction that might have constrained their business and overall the parties came out of the mediation with honours shared.

The estimated costs to the parties to take the proceedings from the point they were at to trial, £250,000 to £300,000. The cost of the mediation was somewhat less than one-tenth of this figure.

It was a “no brainer” as they say.

The Dispute Resolution Team:

John Abbott:   jca@silvermansherliker.co.uk    
Richard Pearlman: rhp@silvermansherliker.co.uk
James Robertson:  jvar@silvermansherliker.co.uk
Stefan Arestis:  sa@silvermansherliker.co.uk
Asil Albayaty  aa@silvermansherliker.co.uk

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