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Науково-практична Інтернет-конференція 25.02.2016 - Секція №3
Mediation procedure is suitable for solving different kinds of disputes in the field of education and intellectual property. In particular, it helps to protect proprietary and non-proprietary intellectual rights and interests of scientist, teachers, researches, and research institutions (honor, dignity, business reputation) more efficiently because, for instance, the facts of mediation and its consequences are not available for the media and remain private. Conflicts are resolved through the mediation usually faster and at lower cost than in the courts. In addition, sides have the opportunity to avoid asymmetric solutions as in court, where one side wins and the other loses. Taking into consideration not only the facts but also the psychological characteristics of relevant personalities, it is more likely to resolve the dispute constructively and with less emotional background and higher probability to accomplish obligations voluntary. Thus, the conflict solved through the mediation has not only legal consequences, but also is less probable to escalate in the future.
An important fact is that mediation procedure is not bound with law. In other words, dispute resolution and achieved agreement may differ dramatically from those effects that would occur as a result of litigation. This enables educational institutions to resolve conflicts individually without creating a precedent, to strengthen their autonomy, to offer unique alternative dispute resolution methods taking into consideration their budget, reputation, own experience and principles in educational and scientific sphere etc. 
Mediation provides an opportunity to resolve conflicts that cannot be addressed to a court because of laches (unreasonable delays pursuing a right or claim). Moreover, taking into account the current international education and research mobility of students and researchers, it is very important to take into consideration not only national rules, but also traditions, religious norms, ethnopsyhological characteristics, and psychological peculiarities of incoming foreigners. The awareness of a possibility (an alternative) to resolve potential conflicts peacefully will certainly make positive impression on prospective students (scientists).
Moreover, mediation procedure is effective to solve disputes relating to results intellectual activity: copyright, patents, industrial design rights, the rights that protect trademarks, brand names, and in some jurisdictions trade secrets, music, literature, artistic works, discoveries and inventions. Parties of the conflict interaction may decide through the mediation process whether to pay for the use of intellectual creations or not. The law does not make such exceptions, consequently, the infringer must bear full responsibility. 
Scholars, especially foreign, often do not know intellectual property regulations in the host country and do not consider the fact of a possible abuse using, for example, unlicensed computer software. Accordingly, unexpected severe punishment will have a negative effect but mediation enables optimal decision, considering the property status of the lawbreaker and the creator of the intellectual property (an inventor, author, and artist), their motives, the extent of the damage etc.
Thus, mediation brings an opportunity to resolve disputes constructively (concerning breaking property and non-property intellectual rights) without using national law but on the basis of personal agreements (which should not directly contradict to national law).
Conflicts in the education sphere are specific by its dispute participants (often minor), the possibility of conflict escalation because of empathy to some sides in conflict interrelations through the prism of own experience. Consequently, mediation makes it possible to measure the fairness (justice, equity) differently than courts do it because mediation procedure gives possibility to take into consideration more facts, motives, believes, threats, psychological peculiarities of the parties and their activity. Moreover, mediator is not bind with strict rules which evidence are relevant, legal or should have priority. Especially, when a conflict happens between a student (pupil) and a teacher - it is likely that the conflict parties will interact frequently in the future, therefore, the escalation is extremely undesirable because it may lead to further polarization the conflicting parties.
The absence of a settlement agreement between the conflict parties after a mediation procedure is a disadvantage, but at the same time confirms parties’ attempts to resolve the dispute peacefully, makes it possible to find out real reasons of parties’ positions, their intentions, the real conflict causes, expectations, misgivings and so on. Of course, the mediation procedure may have adverse effects and lead to violation of justice if a mediator makes some pressure on conflict parties, deceives them, or leads to harmful consequences for conflicting parties intentionally or accidentally. However, as mentioned at the beginning of the paper, mediation is an alternative dispute resolution and there is always a possibility for court appeal according to relevant law procedures.
Taking into account the conflicts in the area of ​​intellectual property, academic activity, and education, it is important to underline the significance of online mediation in this sphere. Using the Internet, the parties can communicate quickly, use templates to carry out proceeding activity, edit information, translate, store, automatically generate the appropriate statistical base, etc. The fact of indirect contact in a conflict itself is a signal for possible negotiation. Since in many countries judiciary is also proceeded in electronic format, online mediation can simplify and speed up the procedure of mediation agreements approved by courts, the procedure of enforcing achieved agreements etc. Moreover, mediation in the sphere or intellectual property is highly demanded if at least one of the party is a foreigner. It helps to promote the unification of terms (definitions), to identify discrepancies between the national legislation of chosen countries, to search for judicial practice with analogous or similar cases (precedents).
As the mediation procedure is voluntary and confidential, a mediator cannot serve as a witness concerning issues (facts), which became known to him/her during the mediation procedure. Consequently, an adequate level of protection of electronic documents, correspondence, data and so on is needed.
Due to significant divergence in wages of workers in different countries, freelancing is becoming more and more popular. This is largely related to intellectual activities: literary written works of fiction, journalistic, scientific, technical or other nature; computer software; databases; musical works with or without lyrics; audiovisual works; works of fine art; works of architecture, city construction, garden and park art; photographic works; works of applied art; illustrations, maps, layouts, drawings, sketches, plastic works relating to geography, geology, topography, engineering, architecture and other spheres of activity; texts of translations for dubbing and other works. The work is usually performed by freelancers in a country with low-cost labor (for example, Ukraine, China, India) and ordered in any country with high-cost labor (UK, Germany, Canada, USA). Any process to resolve the aforementioned conflicts will be costly, especially for freelancers. Therefore, online mediation is a basic way to solve a dispute constructively. Regular trial can be unattainable for freelancers in terms of significant financial cost, lack of knowledge, and skills of its accomplishment.
Online mediation among parties from different countries simplify the procedure of determining the responsibility for violation of intellectual property rights, damages to be recovered, the fact of wrongful activity of the defendant (for example, plagiarism, actions that pose a threat of infringement of copyright and (or) related rights; forging, altering or eliminating rights-management information etc.); amount of damage to the subject of intellectual property rights; a cause-effect link between the unlawful behavior and caused damages; blame of person who caused the damages. Plaintiff in the trial should prove the first three conditions. A court usually applies the presumption of guilt for the person who caused the damage. Therefore, the defendant is considered guilty until he/she will prove his/her innocence. Mediation does not provide any presumption for the parties, so they are free to prove guiltiness, the amount of damage and the method of reimbursement. Inflicted damage in the sphere of intellectual property rights, in many cases, has non-proprietary character (honor, dignity, business reputation of the company) and is their intangible assets and the key to success. Unfortunately, judiciary practice in Ukraine is not developed enough with regard to the abovementioned cases. 
Mediation procedure can be effectively used to defend author's personal non-proprietary rights. For example, to require recognition of his/her authorship by properly indicating the author's name on work and its specimens and during any public use of the work, if practicable; to prohibit mentioning of his/her name during a public use of work, if the author wishes to remain anonymous; to choose a pseudonym, to indicate and require indication of a pseudonym instead of the author's real name on work and its specimens and during any public use; to require preservation of the work integrity, and to counteract any distortion or other alteration of work that may damage author's honor and reputation (Art. 14 of the Law of Ukraine “On Copyright and Related Rights”) [1].
Thus, in comparison with judicial trial, the mediation procedure in the sphere of education and intellectual activity has a number of advantages. It is favorable to settle disputes with a foreign element; can be conducted not only at the place of the offense commitment or residence of the defendant; provides more opportunities in the process of proving important legal facts; eliminates the problem of jurisdiction determination, gives participants of a conflict more freedom in determining the amount of damage and the method of its reimbursement.
 
References:
1. Law of Ukraine “On Copyright and Related Rights” from 23.12.1993 (Official portal of Verkhovna Rada of Ukraine), available at: http://zakon5.rada.gov.ua/laws/show/3792-12 {jcomments on}
 
 

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