Mediation. This can be conducted by a mediator appointed or entrusted by the court, by an administrative authority, or by a commercial mediation body. A mediation agreement can be submitted for judicial confirmation, which makes it enforceable. Mediation is markedly more efficient where the parties have a continuing commercial relationship worth preserving, where the dispute is about licensing terms and rates rather than the validity of the right, or where several cases in several places need to be settled as a package.
Arbitration. Contractual IP disputes can be arbitrated. Disputes about the validity of a right — whether a patent should be declared invalid, whether a trademark should be cancelled — belong to administrative determination of rights and are not arbitrable. This is the boundary most often overlooked when a dispute resolution clause is drafted.
In a cross-border license, specify the arbitral institution, the seat, the governing law and the language, and provide expressly for contract disputes to go to arbitration while validity is pursued through the administrative route.
