When I was in law school, I worked in the University of Ottawa’s Alternative Dispute Resolution Program as a teaching assistant, and later, as a researcher. The program taught practical dispute resolution techniques to law students in an attempt to give them tools to settle problems with something other than a lawsuit.
With more than 95% of cases initiated in Ontario settling at some point before trial, the program sought to enable lawyers to spot early resolution opportunities in order to provide better outcomes for clients. Among the program’s features, was the teaching of negotiation, mediation and arbitration processes and techniques. And it was incredibly practical for lawyers entering the practice, as ADR is on the rise throughout the profession; it’s even being mandated in many cases. Even the Rules of Professional Conduct, which govern the behaviour of lawyers in Ontario, require that lawyers engage in reasonable attempts to resolve disputes through means other than litigation whenever possible.
With all that said, I was still surprised (and amused) this week to see news that indie game developer Markus Persson (of Minecraft fame – and riches) offered (quite seriously) to settle a trade-mark infringement claim made against his upcoming game, with a winner-take-all game of Quake 3 Arena. While this settlement lacks some of the important aspects that the Trade-marks Opposition Board might look for, like, say, evidence of use or rights to the mark, it is attractive in its finality and economy – presumably the cost of setting up the virtual deathmatch is less expensive than paying legal fees for competent counsel.
As a lawyer, I could never recommend this sort of settlement arrangement to a client; giving up your legal rights to chance, or skill in a video game, just doesn’t mesh with the rationality of the practice of law. But as a person with a sense of humour, I will be following the story with interest.
But as always I will be reflecting on my alternative dispute resolution experience and whenever possible, trying to help our clients find the best result we can, in the quickest time, for the least money. It’s what we do.
Scott R. Young