Since this year, Shanghai No. 3 Intermediate People's Court (Shanghai IP Court and Shanghai Railway Transportation Intermediate Court) has started from the scratch to actively explore and promote the pre-litigation mediation and gradually established a diversified dispute resolution mechanism with focus on the mediation for various trades under the guidance of the court. As of June 16, there have been 17 cases entering into the pre-litigation phase upon the consents of both parties to the cases. There were 7 cases achieving successful mediation, marking a success rate of 41%. The cases entering into the mediation related to computer and Internet intellectual property rights.

I. Main Practice and Effectiveness

First is to emphasize on the regulations and maintain the track in the whole course.  

With the formulation of the (Trial) Opinions on Implementing the Establishment of A Diversified Dispute Resolution Mechanism Featuring Litigation Connecting with Non-litigation, the court has defined that the scope to apply the mediation covers all civil, commercial and intellectual property right disputes under the jurisdiction of the court except for the cases which will not be mediated pursuant to the Civil Procedure Law of the People's Republic of China. Concerning the selection of procedures, the court prepared the Consent of Pre-litigation Mediation and the Consultation on the Opinions of Pre-litigation Mediation to facilitate the parties involved to sign on or check the procedures they would like to follow. Then the court compiled the uniform font sizes of mediation for the pre-litigation mediation cases, input the complete case information and developed the Form of the Connection with the Assigned Case for Mediation before Litigation and the Form of the Connection with the Entrusted Case for Mediation in the Litigation to ensure the information transparency and the traceability of each case.

Second is to emphasize on the guidance and extend the functions.  The court printed the Diretory of Mediation Organizations, Guidance on Pre-litigation Mediation, Pre-litigation Fact Sheet and Judicial Confirmation Fact Sheet so that the partis to the case may quickly understand the definition of the pre-litigation mediation and its strength over the litigation, facilitating the choices of these parties.  As the universal demands of the parties for a case are peaceful, quick and cost-effective settlement, the court then procured the parties to be willing to mediate, favor and accept the mediation for the cases with the possibility of mediation by means of active guidance and patient explanation of law and rationales behind. The court also helped the parties clarify the litigation requests, adjust the expectations for the litigation and reduce the risks in the litigation to avoid any delay or error in the litigation due to the lack of litigation knowledge via the combination of promoting the pre-litigation mediation and guidance of litigation, legal assistance and legal consultation.

Third is to Emphasis on the resort to other resources so as make the concerted efforts. 

Given that the IP cases are characterized by large numbers and high expertise, the court expanded the channels to resolute the disputes, signed a Cooperation Agreement on the Diversified Disputes Resolution Mechanisms Featuring the Connection of Litigation with Non-litigation with 8 mediation organizations and trade associations such as Shanghai Commercial Mediation Center (SCMC), introduced a mechanism of assigning mediators from mediation organizations (lawyer) to be on site for the work, made the best of the trade-specific mediation organizations' advantages in the information, talents and expertise and improved the efficiency to resolve the disputes. In this way, more disputes were resolved through alternative dispute resolution channels and the allocation of trial resources was optimized. The courts and the judges now are able to focus on the trials of difficult and complicated cases to give a full play to the judicial protection of the intellectual property rights and serve the development of the technology and innovation center in Shanghai.

II. Working Plan for the Next Step

First is to improve the system design so as to demonstrate the justice for the people and facilitation of the people's access to judicial services. The court is going to design the pre-litigation mediation notice and explore the method of serving the template pre-litigation mediation notice to the parties to the court for mediation.  The court will also explore the pattern of litigation cost collection on the basis of case to reduce the litigation charges so that the parties may be more prone to choose the pre-litigation mediation. By emphasizing the legal guidance and assistance during the mediation, the court will confirm the efficacy of the mediation agreement pursuant to the written mediation, confirmation of the effective judgment of the mediation agreement and judgment of litigation withdrawal.  The court will also notify explicitly the one party the other party may apply for the mandatory enforcement to the court in case of any refusal of performance or failure of full fulfillment so as to eradicate the future worries of the party involved.

Second is to improve the working method and strive to achieve the substantial effectiveness of the pre-litigation mediation. 

The court will intensify the communication and engagement with the parties and mediation organizations in multiple aspects such as the choice of case, interpretation and guidance, assignment and entrustment and dispute coordination.  Concerning the cases within the scope of pre-litigation mediation, the court will consult with the parties about the willingness to start the mediation and give interpretation. When consulting about the willingness for the mediation with the defendant, the court will listen carefully further to the defendant with regard to the demands, facts and reasons, analyze the focuses of the dispute, render the prejudgment of the pre-litigation mediation, and coordinate with the mediation organization to formulate the mediation scheme and plans on these basis. The court will also expand the out-of-court mediation venue and improve the judicial efficiency by fully utilizing the information technology exploration network video mediation mode.

Third is to enhance the education and training to improve the capabilities of the mediation and litigation judges and mediators.  The court will enhance the exchange with the counterpart courts and learn from each other the established experiences and practices.  The court will enhance the building of the litigation and mediation judge team, put efforts into the capabilities of the litigation and mediation judges in such aspects as the guidance on the mediation, judicial confirmation and quick trial of the case.  The court will also ramp up the training and guidance of the mediators, create a menu training mechanism to provide the mediators with more specific trainings and make efforts to the transfer the experience-based dispute resolution talents to the professional mediators.

Fourth is to intensify the publicity and increase the influence of pre-litigation mediation.