In October, Minister Humberto Martins, the president of the Superior Court of Appeals (STJ), defended, in his opening lecture at ABPI’s 40th International Congress on Intellectual Property, the adoption of extrajudicial methods for resolving conflicts “as a condition to provide greater protection to the development of intellectual property”. He cited as an example the Mediation and Arbitration Chambers on Intellectual Property “composed of experts in this area of knowledge who communicate via the internet, with conversations carried out through non-face-to-face meeting platforms”.
The virtualization of procedures streamlined extrajudicial conflict resolutions, and the practice became constant learning to deal with the system. Risks of leakage and breach of confidentiality, which on some scale have always existed in the face-to-face system, can be mitigated by collaboration between the parties. “In the online environment, we have some challenges that already existed in person. What changed was the way of checking and validating and, for this, the collaboration of the parties involved is essential”, says lawyer Nathalia Mazzonetto, mediator and arbitrator of CSD- ABPI, the Dispute Resolution Center of the Brazilian Intellectual Property Association.
In order to try to safeguard the environment, mediation and arbitration centers have proposed a 360-degree validation in the virtual environment, among other technical measures of single and unaccompanied access to avoid the exchange of participants that impact the collection of statements. Online or in person, the issue of confidentiality is always sensitive, whether in mediation or arbitration, and any leak can be used as evidence, impact the process and become a competitive advantage for one of the parties. “It is at this point, that of the commitment to confidentiality, that the collaboration of the parties is fundamental”, says Mazzonetto, remembering that it is up to the court to exercise the role of guarding the case, imposing sanctions and conducts of behavior, in addition to considering eventual absences when fixing the defeated party’s fees.
The CSD-ABPI regulated, through Resolutions Nº 01/2020, of 3/20/2020, and 02/2020, of 7/21/2020, the adoption of the digital procedure and the holding of meetings and virtual hearings, to adapt arbitration and mediation procedures to the use of a digital platform and meet the necessary security requirements. For Manoel J. Pereira dos Santos, the president of CSD-ABPI, the experience of the Arbitration and Mediation Chambers of the Center with the use of digital platforms was very positive, with no operational or procedural problems. It is possible to create protocols to use technology in addition to regulations/normative acts, which apply both to arbitration and mediation, by the way, two types of conflict resolution that are not preclusive. “At CSD-ABPI, during the arbitration, the parties can choose to get to know the mediation with personalized service at any time”, says Cláudia Frankel Grosman, the Director of ABPI’s Mediation Chamber. “The window for mediation is always a possibility”.
