ЗАСТОСУВАННЯ ТА ОСОБЛИВОСТІ МЕДІАЦІЇ У СФЕРІ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ: ЗАРУБІЖНИЙ ДОСВІД

Abstract

The article examines issues related to world experience and the specifics of using mediation when resolving intellectual property disputes. The main attention is paid to the works of both European, including Ukrainian, and Asian lawyers who analyze national legal systems and determine the place of mediation processes in them. The vast majority of researchers outline international legislation, determine the advantages of mediation over the classic judicial process, etc. At the same time, lawyers resort not only to analytics and theoretical developments, but also offer practical measures to improve the system, structures, and process of mediation. In the process of investigation, it was found that the term "mediation" is not precisely defined and causes discussions among lawyers. Accordingly, the forms of mediation in different countries vary from a settlement agreement, arbitration, an expert's opinion, to mediation, conciliation, early neutral assessment to the ombudsman. At the same time, each of the countries has peculiarities regarding the structure of mediation bodies, features of application, course of the process, etc. In particular, in Singapore, an innovative method is the covering the costs of companies that have resorted to resolving disputes through mediation by a specially created office. Features of the mediation process in Great Britain are the presence of a special hotline, where with the help of a specialist it is possible to decide on the choice of a mediator who will meet the applicant's requirements; mandatory actions of the judge, aimed at involving the parties in mediation before the case is considered; the obligation of the party that refused the mediation procedure proposed by the court to compensate all court costs, even in case of victory. Such features are determined by: the existing legal system and current legislation, worldview and religious concepts, established customs and traditions (mainly applies to the countries of the East). It was also established that in a significant number of countries of the world, the analysis of the mediation process has several limitations. Particularly, the confidentiality of the mediation and the impossibility of referring to the negotiation materials; insufficient competence of individual intellectual property law experts, which limits the objectivity of coverage and assessment of mediation processes, etc.