By Janina C. Lim
With last year’s success of IPOPHL’s mediation service — through the settlement of San Miguel Food and Beverage, Inc. (SMFB) and Gold Label Resources, Inc. (GLRI) — many wonder what it takes to achieve successful mediation. But what is a successful IP mediation?
IP mediation is a service offered at the Bureau of Legal Affairs (BLA) of the Intellectual Property Office of the Philippines, actively promoted to help parties save on cost and time compared to litigation.
“A sustained effort to enhance and expand our Alternative Dispute Resolution program, particularly mediation, signals a shift from an agency that purely offers adjudication services to an IP dispute resolution hub,” IPOPHL Officer-in-Charge Nathaniel S. Arevalo said.
“Mediation gives parties the opportunity to discuss possible amicable settlement of their disputes. It is a delicate and nuanced process that requires skills not just to facilitate negotiation but to build trust, foster open communication and transform the relationships of parties,” BLA Officer-in-Charge Christine V. Pangilinan-Canlapan said.
Here are five skills any IP mediator must possess:
- Gaining trust through neutrality and integrity
One of the most critical qualities of an effective mediator is neutrality, according to Maria Gladys Vilchez, one of the founding partners of Hechanova Bugay Vilchez & Andaya-Racadio Law Offices (HBVAR), and one of IPOPHLs’ accredited mediators.
“The mediator must be seen as impartial by all parties, someone who is not taking sides but is instead working to help both sides communicate effectively. This means the mediator must remain objective, even when one party may be clearly in the wrong or more aggressive,” said Vilchez, who is also an accredited neutral of the World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center and of IPOPHL.
“In my experience as a lawyer, I understand the frustration that comes when a party’s position seems unreasonable. But as a mediator, it’s important not to express personal feelings or show bias. My role is not to be a judge or an advocate for either party but to facilitate a dialogue that helps them meet halfway,” Vilchez emphasized.
Neutrality can also be reinforced when you come clean to parties, such that if one of the parties is a previous client, the mediator discloses the information and lets the parties decide whether to proceed with the mediator or a different one.
“There should be integrity, and there should be no conflict of interest,” Vilchez added.
- Competence and expertise
While mediators do not decide a case, parties benefit from a mediator who is knowledgeable in the nature of their disputes.
In the context of IP, this means the mediator should have a solid grasp of the technical and legal aspects of IP law and current trends. With extensive knowledge, mediators are equipped to ask the right questions, identify underlying issues and steer the process in a productive direction.
“In IP disputes, where the stakes can be high, a mediator’s understanding of the technical and legal aspects enables them to clarify complex issues, making the process more efficient and focused,” Ms. Vilchez added.
- Patience and persistence
Mediation is often a long, drawn-out process, especially in emotionally charged or complex cases. Many times, parties will feel they’ve reached an impasse and may want to quit, but a good mediator knows when to push forward, when to take a step back and when to allow time for reflection. With patience, mediators can better navigate difficult emotions and help the parties reconsider their positions.
Ernest S. Ang, Jr., Managing Partner of Ang & Associates and a legal representative to GLRI, has seen how patience can be the difference between a failed mediation and a successful one.
“There were many times during the process when both parties were ready to give up and quit but [mediator Vilmi Quipit] insisted. And we ended up with a good compromise agreement, which was satisfactory to both parties,” Ang said.
ACCRALAW Partner Victor de Leon, a legal representative for SMFBI, said Quipit was “instrumental“ in the successful mediation outcome.
“As a mediator you really need to be patient, you need to be fair, and to listen to both sides… Fortunately, Mediator Vilmi was all of those things,” de Leon said.
Quipit stressed that mediators should show genuineness in seeing the possibility of settlement, as this sparks hope for parties.
“When the parties see that the mediator is genuinely sincere in bringing the parties to a common understanding of their conflict and to see each other’s perspective, they are encouraged to desire themselves to reconcile their differences to honor the hard work of the mediator as they try to look at the whole picture of their conflict from the point of view of a neutral third party. That makes it so gratifying to the mediator! “ Quipit said.
- Listening to verbal and non-verbal signals
Listening is a fundamental skill in mediation, and it goes beyond hearing words to taking cues from non-verbal communication—facial expression, body language, tone of voice and other subtle signals.
“Active listening means understanding the underlying emotions, needs and concerns that may not be immediately apparent. This could mean reading between the lines to understand the real motivations behind a party’s position,” Vilchez explained.
Active listening also involves rephrasing and summarizing what is said in a neutral tone, ensuring that no emotions are inadvertently heightened. This helps maintain a calm, controlled atmosphere, especially when tensions rise.
For her part, ACCRALAW Associate and SMFBI legal representative Clarisse Paulina M. Valdecantos also expressed her appreciation for having an attentive listener like Quipit, especially when emotions were running high and were starting to get in the way between the parties.
“There’s beauty in having a person there in the middle just translating everything for you and telling you the true intentions of the other party,” Valdecantos added.
- Finding fulfillment in transforming relationships
Quipit, a mediator for over 23 years, shared how her spirits were lifted after the settlement of the SMFBI and GLRI.
But more than the settlement, the recipient of the Supreme Court’s Peacemaker Award—an award given for the high number of court cases she settled—said what she loves with her job is mending relationships of families and old friends.
She recalls an IP case that involved a group of friends “who have been with each other through thick or thin” for over ten years. The relationship turned sour when one of them registered himself as the lone author to a work of which his other friends were the primary rights holders.
“Everyone was emotionally high-strung. It was a good thing we were already doing online mediation then because it seemed that they really wanted to punch each other,” Quipit said. Eventually, by putting onto the table all the key ingredients of a mediator, Quipit helped resolve the case in a few months and the respondent detached his name from the work. While the friendship has been scarred, the win-win resolution allows them to leave behind old grudges and heal.
“What is a successful mediation? For me, successful mediation doesn’t necessarily mean settlement but of course such outcome is desirable. What’s important is to be able to transform the relationship of the parties from an adversarial one to one where communication lines are open,” Vilchez said, emphasizing its significance given that mediation has a deadline—in the case of IPOPHL, 60 calendar days, with a 30-day extension if warranted. With a more cooperative atmosphere, there will be a possibility of future negotiation beyond the mediation deadline.
“Initially, I thought what I was doing was facilitative mediation. Little did I know I was already doing transformative mediation, which means your goal is not only to settle but to transform the relationship of parties. And there’s nothing more fulfilling than this,” Vilchez said.
