Mediation in ICT Disputes

IT projects are often complex structures comprising several interlinked contracts and can lead to clients becoming dependent on service providers. In the event of a dispute over contractual performance, legal proceedings may not always be the ideal solution. In such cases, mediation can be a viable alternative.

Faster resolution 

In mediation, the parties work independently to develop a solution to their dispute. They are supported by a mediator – a neutral, trained professional – who guides and structures the mediation process. Statistics and experience show that commercial mediations often require only a few days of negotiations to reach a solution. However, this presupposes that the disputing parties are genuinely interested in negotiations and in finding a solution. By contrast, court proceedings often take years, particularly if the parties exhaust all available avenues of appeal. 

Parties retain control

ICT disputes frequently revolve around technical aspects such as specifications, performance criteria or data migration. Addressing such issues in court proceedings is time-consuming, costly and uncertain. This usually requires extensive expert reports, which entail correspondingly high costs. Furthermore, the court only rules on what has actually been claimed and is enforceable. In mediation, by contrast, the parties retain control over the process. They also generally have a better technical understanding of the points at issue, are free to find solutions and are not bound by the claims made, unlike a court.

Technological change is outpacing the legal process

The world of IT is evolving at a breathtaking pace. By the time a judgement on the defectiveness of software or compliance with service levels becomes final, the technology in question may already be obsolete. The actual interest underlying the conflict – such as a system functioning without defects or a successfully completed project – often cannot be satisfied by a court judgement years later. Mediation allows conflicts to be addressed whilst the project is still ongoing, whilst at the same time preserving the business relationship. Its confidentiality also protects trade secrets and the reputation of the parties.

Mediation with expert support

In the traditional sense, the mediator does not propose solutions, as the parties are expected to resolve the conflict themselves. However, particularly in ICT disputes, it can be extremely valuable that a specialist with combined legal and technical expertise provides a legal assessment of the dispute or puts forward a non-binding proposal for a solution. However, the disputing parties must clearly agree on such a role in advance. 

As a lawyer specializing in IT and technology law for many years and a trained SAV mediator, our partner Christian Leupi excels at bridging this gap between technology, law and alternative dispute resolution, providing companies with objective and expert support throughout the conflict resolution process.

Conclusion

Mediation is a particularly suitable tool for dispute resolution, especially in the ICT sector. It is entirely under the control of the parties, is confidential, flexible, generally quicker than court proceedings and more open to forward-looking solutions. Those who include sensible escalation and mediation clauses in their IT contracts from the outset lay the foundations for resolving conflicts early on and constructively.