Mediation for NGOs

This article was prepared by Justine Ferland, legal case manager at the WIPO Arbitration and Mediation Center.

NGOs play a critical role in society and strive to allocate their resources in effective ways in order to achieve the greatest impact. Despite their best efforts to accomplish their missions, disputes can and do arise in their activities. Litigation can be costly and few NGOs have sufficient resources to use that route. NGOs are thus increasingly turning to alternative dispute resolution (ADR) mechanisms to resolve disputes rather than litigation before courts.

Alternative Dispute Resolution

ADR refers to mechanisms such as mediation and arbitration that allow parties to solve their disputes outside of court in a private forum, with the assistance of a qualified neutral intermediary of their choice. Mediation and arbitration differ in terms of procedural formality, party control and finality, and each option offers benefits uniquely appropriate to specific circumstances. Mediation, in particular, has significant potential to resolve disputes involving NGOs.

Advantages of Mediation

Mediation is a non-binding, informal process whereby a mediator assists the parties to settle their dispute. The mediator does this by furthering dialogue between the parties and helping them identify their underlying interests and reach mutually satisfactory solutions. Any settlement is recorded in an enforceable contract.

Its main advantages include:

• Time and cost efficiency: mediation allows parties to save significant costs that they would otherwise incur in court proceedings. Mediation can take a few months or longer, but may be completed more rapidly at the request of the parties. In contrast, it is likely to take years before a final judgment is rendered in a court case.
• A single proceeding: parties can resolve disputes covering issues spanning several jurisdictions (e.g. several territories) in a single proceeding, making it possible to avoid the expense of multi-jurisdictional litigation and eliminating the risk of inconsistent results from legal proceedings across national borders.
• Party autonomy and expertise: because of its private nature, mediation offers parties greater control over the way their dispute is resolved. Depending on their needs, they can choose a mediator with expertise relevant to the dispute, the applicable rules and procedures, and the place and language of the proceedings.
• Confidentiality: mediation allows parties to keep the proceedings and the outcome of them confidential. Confidential dispute resolution helps parties to focus on the merits of their dispute without fear of adverse publicity and to preserve the parties’ reputations.
• Preserving relationships: whereas, in litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law, mediation gives the parties the opportunity to go beyond the legalistic resolution of the dispute to negotiate creative solutions that satisfy their business interests, including preserving existing relationships or forging new ones.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. In the World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center)’s experience, most mediations—around 75% of them—settle, allowing the parties to move on from their dispute. Even when a settlement is not achieved, one could say that mediation never fails, as the process of it induces the parties to define the facts and issues of the dispute, which prepares the ground for any subsequent arbitration or court proceedings.

WIPO Center: A Mediation Resource

The WIPO Center, a part of WIPO, a specialized United Nations agency, is a resource that can provide valuable support and assistance to NGOs in resolving disputes, particularly intellectual property (IP), technology and commercial-related ones, through ADR procedures. 

Based in Geneva, Switzerland with an office in Singapore, it facilitates the time and cost-effective resolution of such disputes worldwide using these mechanisms.  It is also the leading global provider of mechanisms for resolving internet domain name disputes without the need for litigation.

The WIPO Center notably provides procedural assistance such as helping with the selection of mediators, facilitating communication, enforcing timelines, coordinating finance-related issues, offering guidance on the application of relevant procedural rules and arranging meeting and other support services. It can also assist NGOs in drafting contract clauses and submission agreements, with its free offering of model clauses and agreements and free WIPO Clause Generator, which allows parties to develop their own clauses and agreements, and submitting a dispute to mediation, including in non-contractual and infringement disputes or cases pending before the courts.

NGOs may particularly benefit from the WIPO Center’s online case administration options, including an online docket, videoconferencing facilities and a special WIPO checklist for online proceedings.

Finally, the WIPO Center applies a 25% reduction on its administration and registration fees in mediation and arbitration cases where one or both parties is a user of certain WIPO services or a small-to-medium enterprise, defined as an organization with up to 250 employees.

WIPO Mediation Cases Involving NGOs

The WIPO Center has administered more than 1,000 mediation, arbitration, expedited arbitration and expert determination cases, most of which were managed in the last five years. Since 2020, the WIPO Center has seen an increase in the use of its services by NGOs, especially mediation, suggesting that NGOs are becoming more aware of the benefits of mediation.

The cases involving NGOs have concerned disputes between parties that are in both a contract and not in a contract, and have been both national and international in nature. The most frequent types of disputes are those related to trademarks and information technology (IT). In one case, two NGOs requested the assistance of a mediator not to resolve a specific dispute, but to help them negotiate new objectives and terms of collaboration in the context of a long-term partnership agreement. This example illustrates the potential of mediation not only as a dispute resolution mechanism, but also as a mechanism facilitating contractual negotiations.