The escalation of pre-litigation mediation and its advantages

“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” – Joseph Grynabaum. Indeed, the birth of every dispute requires the infusion of litigation. However, as Albert Einstein once said: “In the middle of every difficulty lies opportunity.” Thus, between the inception of a dispute and the solution of litigation, lies the opportunity of a mediation or conciliation, which are voluntary and structured negotiation processes where a neutral party, specializing in communication and negotiation, assists parties in amicably resolving their disputes.

The threat of litigation is a significant leverage while enforcing intellectual property (IP) rights, especially for software companies. However, litigating against a pirate/infringer is not always feasible in a suit of copyright infringement for numerous reasons, such as sensitivities involved in initiating legal proceedings against large enterprises and special interest clients, and instances where there are issues regarding the jurisdiction, or a lawsuit may result in a low return on investment. In such scenarios, it is a good strategy to escalate the negotiations regarding regularization of the infringement to a pre-suit mediation proceeding.

Statistical menace

Software piracy is the biggest problem for a software company to tackle due to the highly sought-after nature of software programs, they being essential in almost every form of industry. The software intelligence and analytics company Revulytics’ 2018 Compliance Intelligence Data Survey shows that the use of unlicensed software puts India third in the world for using pirated or unlicensed software. With such widespread violation of IP rights in different software programs, the option of cost effective pre-litigation mediation is a more advantageous position than expensive and tedious full-fledged litigation.

Shantanu Sahay is a partner and Rohan Sharma is an associate at Anand and Anand