Mediation holds a lot of promise as an alternative to resolving conflicts before court as is currently usual. In general in situations involving serious conflict an attorney is called in and charged with the task of enforcing possible claims against the other party, before court where necessary. This can result in enormous damage being done to the deteriment or even the ruin of a good business when conflicts involve litigation.

It is here that mediation takes a completely different approach. The parties involved in the conflict, such as e.g. parties to a licensing agreement, a sales agreement or a dispute involving patent rights meet with a mediator and work out with his aid in a strongly structurized procedure a solution ameniable for both sides. In mediation the parties themselves thus have the power as to how to go about achieving a solution. To this extent mediation also differs from the other alternative of arbitration in which – in most cases similar to conventional civil proceedings – one party is judged to be in the right. In abitration too, a third party thus decides who is the winner and loser of the dispute.

In mediation, both parties search for possible solutions in striving to obtain a win-win situation, i.e. a solution to the benefit of both sides. An agreement as worked out in mediation can be checked as to the legal consequences as requested by the parties. Likewise the agreement can also be made enforceable.

To illustrate the potential for a solution to a possible conflict a fictive dispute between the firm Einstein and the firm Marktriese is considered as an example in the following by comparing a patent infringement dispute before court to a conflict solution in the scope of a mediation:

The two firms Einstein and Marktriese are competitors in the production of light alloy wheels. Einstein has a patent on a method for production of light alloy wheels. Marktriese is significantly larger than Einstein with a correspondingly better access to the marketplace and a greater marketing potential. Marktriese has learned of Einstein‘s advantageous production method and makes use of the method without being aware of infringing the rights of a patent.

Conventional Procedure

Einstein takes Marktriese to court – in this case the Düsseldorf District Court – for patent infringement. Marktriese defends itself but reverts to the previous, more expensive production method, to be on the safe side. Litigation in two instances takes two and a half years resulting in Einstein as the winner.

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