Rules for Conducting Mediation in the Field of Intellectual Property

APPROVED
Order of UANIPIO
No. 159-O/2023 dated 07.09.2023

Rules for Conducting Mediation in the Field of Intellectual Property

I. General provisions

1. The Rules for Conducting Mediation in the Field of Intellectual Property define the mediation procedure on the basis of the State Organization "Ukrainian National Office for Intellectual Property and Innovations".
   The Rules have been developed in accordance with the Law of Ukraine "On Mediation" No. 1875-IX dated 16.11.2021 (hereinafter referred to as the "Law"), the Charter of the State Organization "Ukrainian National Office for Intellectual Property and Innovations" approved by the Order of the Ministry of Economy of Ukraine No. 10649 dated 09.08.2023, Regulations on the Register of Mediators Involved in Intellectual Property Dispute Resolution, (hereinafter referred to as the "Regulations on the Register"), the Code of Professional Ethics (hereinafter (hereinafter referred to as the "Code") approved by the Order of the State Organization "Ukrainian National Office for Intellectual Property and Innovations" (hereinafter referred to as "UANIPIO") No. 159-O/2023 dated 07.09.2023, The Procedure for Providing Paid Services of the State Organization "Ukrainian National Office for Intellectual Property and Innovations" approved by the Order of UANIPIO No. 38-O/2023 dated 17.02.2023, taking into account WIPO Mediation Rules dated 01.07.2021.

2. In these Rules, abbreviations and terms shall have the following meanings:
   UANIPIO shall mean the State Organization "Ukrainian National Office for Intellectual Property and Innovations", which ensures the introduction of mechanisms for alternative dispute resolution in the field of intellectual property, in particular through mediation.
   Center shall mean the Mediation Center, which is a structural subdivision of UANIPIO ensuring the implementation of mediation in the field of intellectual property.
   IP shall mean intellectual property (used for abbreviations, such as "IP mediator", "IP mediation", "IP sector").
   Register shall mean an electronic database formed and maintained by an authorized structural subdivision of UANIPIO and containing information on mediators who may be involved in conducting IP mediation on the basis of UANIPIO.
   Code shall mean a set of professional conduct rules approved by UANIPIO for the use of uniform ethical standards of mediation on the basis of UANIPIO.
   Mediation shall mean an out-of-court, voluntary, confidential, and structured procedure in which the parties, with the help of a mediator (mediators), try to prevent or resolve a conflict (dispute) in the IP sector through negotiations.
   Mediator shall mean a neutral, independent and unbiased individual who has completed basic mediator training, as well as specialized training in IP and/or business mediation, complying with the Code and generally accepted standards of ethical conduct, and entered in the Register.
   Co-mediator shall mean a mediator whose information is entered in the Register and who conducts IP mediation in cooperation with one or more mediators.
   Mediation services shall mean services provided by UANIPIO regarding the organization of mediation preparation activities and organizational and technical support of mediation services.

II. Mediator

1. A mediator whose information is entered in the Register is involved in mediation at the Center.

2. A mediator may not be a person who:
   1)    has been declared legally incapacitated or limitedly capacitated by a court;
   2) has an unexpunged or unremoved criminal record in accordance with the law;
   3) has been dismissed from the position of a judge, prosecutor, investigator, notary, civil officer or officer of local self-government bodies for violation of the oath or committing a corruption offense and disbarred due to a violation of the Rules of Professional Conduct, or held liable for non-compliance with the rules of professional conduct.

3. A mediator is a neutral person who shall refrain from conducting mediation if there are circumstances that make it impossible for him or her to be impartial.
   The mediator shall show equal attention and goodwill to all parties to the mediation.
   The mediator should be an impartial person who helps the parties to communicate, reach an understanding and negotiate.

4. When conducting mediation, the mediator is independent of the parties to the mediation, state bodies, other legal entities and individuals.
   The intervention of state authorities, local self-government bodies, enterprises, institutions, organizations regardless of their  forms of ownership and subordination, public associations, officials and officials, including UANIPIO, any individuals and legal entities in the preparation and conduct of mediation is prohibited.
   The mediator shall independently determine the methodology of mediation in accordance with the Law, these Rules, the Code, and, in particular, other international rules governing mediation.

III. Mediation

1. The Centre shall initiate organizational measures to prepare for the mediation at the initiative of one of the parties upon submission of an application for conducting mediation to UANIPIO, the form of which is given in Appendix 1 to these Rules, or upon a joint application of the parties (Annex 2 to these Rules).
   Two or more parties may participate in mediation. The parties to mediation may be individuals and/or legal entities wishing to settle a dispute through mediation. The parties may participate in mediation in person, through their authorized representatives, or together with them.
   The amount and procedure for payment for mediation services are determined by the The Procedure for Providing Paid Services of UANIPIO.

2. The Centre accepts applications for mediation on disputes related to intellectual property that can be resolved through mediation.

3. The Centre shall make organizational arrangements to prepare for mediation on a paid basis. The Centre's services shall be paid by the party (parties) upon submission of the application for mediation.
   In case of submission of an application at the initiative of one party, the Center does not guarantee the consent of the other party (parties) to participate in mediation. If no agreement is reached after the measures taken by the Centre to invite the other party(ies) to participate in the mediation, the payment made by the initiating party upon submission of the application shall be non-refundable.

4. The application for mediation shall contain the following information:
   1) for individuals - surname, name and patronymic (if any), postal address of location (place of residence), for legal entities - full name, identification code, postal address of location;
   2) email address, contact telephone number;
   3) information on the representatives of the parties (if any), postal address of the registered office (place of residence), email address, contact telephone number;
   4) a brief description of the nature of the dispute;
   5) proposals on the format and language of the mediation;
   6) other information that, in the opinion of the applicant (applicants), is significant for the preparation and conduct of the mediation.
    The application for mediation shall be accompanied by:
   1) a document confirming payment for mediation preparation services;
   2) if the application is signed by an authorized representative of the party(parties), documentary evidence of his/her powers.
   The application for mediation shall be made in Ukrainian. The documents attached to it, if they are drawn up in a foreign language, must contain a translation into Ukrainian.

5. In the case of receiving a request for mediation from one party, the Centre shall send a copy to the other party (parties) with an invitation to enter into mediation and offer to notify the Centre of its decision to participate in mediation within 15 calendar days.
   At the request of the parties, the Centre shall hold information and consultation meetings to explain the principles, rules, and procedure of IP mediation, the rights, and obligations of the mediator, his/her role in the dispute resolution, the possibility of engaging relevant specialists (experts), interpreters, the consequences of concluding the mediation agreement and the agreement based on the results of the mediation, etc. These meetings are held in a format convenient for the parties, including remotely via video conference.
   If the Centre does not receive a response to the invitation within the specified period or the party (parties) notifies of their refusal to settle the dispute through mediation, the initiating party shall be immediately informed thereof.
   The consent of the party (parties) to participate in the organizational arrangements for the preparation for mediation shall be formalized by submitting to the IP Office an application for mediation in the form of which is given in Annex 1 to these Rules.
   If three or more parties are expected to participate in the mediation, and the Centre has not received confirmation of readiness to participate in the mediation from all parties, the preparation for mediation shall be conducted between those parties who, under such circumstances, have agreed to participate in it.

6. If the parties have reached a preliminary agreement to conduct mediation, the Centre shall invite each of the parties to independently select a mediator from the Register, which is publicly available for review on the official website of UANIPIO.
   After reviewing the Register, each of the parties shall send to the Centre a list of at least three mediators selected in order of preference.
   If a party has categorical objections to the participation in the mediation of the mediator (mediators) whose information is contained in the Register, the party shall notify the Centre in writing at the same time as submitting the list of selected mediators.
   If the lists submitted by the parties do not match the candidate for mediator, the Center shall acquaint each of the parties with the received proposals in order to reach an agreement on this issue.
   The parties may agree on the participation of two or more mediators in the mediation and shall notify the Centre in writing. A co-mediator shall be selected from the list of mediators whose information is entered in the Register.
   If the parties have not selected a mediator within 20 calendar days from the date of receipt of such an invitation, the mediation at the Center shall be considered as having not taken place.

7. The Centre, taking into account the preferences and objections expressed by the parties to the candidates of mediators, shall send an invitation to the mediator they selected for an introductory meeting with the parties.
   Upon agreement of the parties and the mediator, the introductory meeting may be held remotely via video conference.
   Based on the results of the introductory meeting, if the parties agree to mediation, the mediator and the parties shall conclude a mediation agreement, and if they do not agree, the parties shall repeat the procedure for selecting a mediator in the manner and within the time limits provided for in paragraph 6 of this section of the Rules.
   The mediator shall inform the Centre about the results of the introductory meeting.

8. At any stage of the mediation, the participants (parties and mediator), by mutual agreement, may apply to the Centre with a request to engage a co-mediator (co-mediators) from the list of mediators whose information is entered in the Register.
   The Centre shall engage a co-mediator on a paid basis. The services of the Centre shall be paid by the party (parties) upon submission of the application for the engagement of a co-mediator.
   The amount and payment procedure for these services are determined by the Procedure for Providing Paid Services of UANIPIO.
   The Center, taking into account the proposals made by the participants regarding the candidacy of the co-mediator (co-mediators), shall send him/her an invitation to an introductory meeting with the parties and the mediator.
   Based on the results of the introductory meeting, if the parties and the mediators agree, an agreement on the engagement of a co-mediator shall be concluded. The agreement may contain provisions on the approving the method of conducting mediation, the distribution of responsibility, etc.
   In case of non-agreement, the participants shall repeat the procedure for selecting a co-mediator. If the parties to the mediation do not select a co-mediator within 20 calendar days from the date of submission of the application for engagement of a co-mediator, the engagement of a co-mediator shall be deemed not to have taken place at the Center.
   The time spent on engaging a co-mediator shall not be taken into account in the total duration of the mediation.
   If, for any reason, the co-mediator is unable to fulfill his or her duties, he or she shall notify the other participants in the mediation. In such circumstances, the participants shall decide to terminate the mediation or continue it in a changed composition.

9. Mediation shall be conducted in the manner and within the terms agreed upon by the parties and the mediator, taking into account the principles of voluntariness, confidentiality, neutrality, independence and impartiality of the mediator, self-determination, and equal rights of the parties to the mediation.
   Mediation may be conducted in the format of individual meetings of the mediator with the parties, joint meetings of the participants, both offline and remotely by telephone, in video conference mode using online tools agreed by the participants, with the involvement of experts, interpreters and other persons agreed upon by the parties to the mediation.
   The place of mediation, unless the parties have agreed otherwise, is the location of the Center.
   The parties conscientiously and actively cooperate with the mediator, not allowing abuse of their rights and making efforts to comply with the deadlines set by them for consideration of the dispute.
   The parties to the mediation shall be treated equally and fairly. The mediator shall facilitate the settlement of disputed issues between the parties and assist in communication between them. The mediator shall not have the right to provide the parties with advice and recommendations on making a decision on the merits of the dispute or to make such a decision independently.
   The parties, the mediator and other mediation participants, as well as persons involved in the process of preparation and conduct of mediation, are obliged to respect the confidentiality of mediation and shall not disclose information that became known during the preparation and conduct of the mediation, unless otherwise established by the Law or agreement all participants to the mediation.
   All documents and information provided during the mediation shall be confidential, kept separate from the materials of any other proceedings in UANIPIO, and shall not be a part thereof. The parties have the right to withdraw the documents provided during the mediation at any time and not to leave them for storage in UANIPIO.

10. Mediation shall be terminated:
    1). conclusion of an agreement by the mediation parties based on the results of the mediation;
    2) by decision of the mediator (co-mediators) if, in his/her opinion, further mediation efforts will not lead to resolution of the dispute;
    3) in case of refusal of at least one of the mediation parties to participate in the mediation;
    4) on other grounds established by the Law or the mediation agreement.

11. Upon termination of the mediation, the mediator shall notify the Centre within five calendar days by sending a written report (Annex 3).
    The report on the termination of mediation shall contain information on the total number of working hours of mediation, including at the Centre, the grounds and date of termination of mediation, regardless of whether the mediation resulted in a positive resolution of the dispute and, if so, whether the dispute was fully or partially resolved.
    Information from the report may be used by the Center as statistical data published by UANIPIO, provided that such information does not reveal the identity of the parties and/or the specific circumstances of the dispute.