Disputes between and within organisations occur with a fair degree of regularity, and there are ways of resolving these without ending up in court. Jackie Elliman looks at alternative dispute resolution and the arts.
?Alternative dispute resolution? (ADR) is fast becoming an essential step in any dispute that might end up in a court or tribunal and, with court costs escalating, it is an important alternative to court proceedings. In the arts sector, where money is tight and a product may often have a short life span, dispute solutions that are swift and inexpensive are essential and it is rare for cases to go to court. Two of the main forms of ADR in the UK at present are arbitration and mediation; although many ADR professionals practise both, they are very different processes with their own benefits and drawbacks.
The third party
Arbitration generally involves an impartial third party (a single arbitrator or a panel) hearing each party?s case (often including witnesses), allowing examination and cross-examination and making a legally binding judgment. Not much different from going to court; however, arbitration is popular for commercial disputes because even though it can cost more than a court case, arbitration is a confidential process, while court cases can be very public. Additionally, the parties (under the rather exceptional provisions of the Arbitration Act 1996) have control: they can decide much about how the proceedings are to be conducted. This sounds better on paper than in practice, since by the time parties reach the point of arbitration it is unlikely that they are able to agree on anything at all. Arbitration tends to take place slightly more speedily than a court case and it is also possible for an arbitrator to consider a case on the basis of documents alone, which will be significantly less time-consuming and expensive than a full hearing.
Mediation also involves a third party neutral (usually just one) who does not judge, but works with the parties to help them to resolve their dispute themselves. It generally involves a meeting with all the parties, followed by a series of private meetings between the mediator and each party where the issues in the dispute and the possible options for resolution can be explored and, hopefully, common ground found. Mediation can be swift, generally concluded within one day. It usually results in a binding settlement being made, although a mediation settlement is not automatically legally enforceable.
In ?facilitative mediation?, the mediator does not direct the parties towards any particular settlement. The mediator, however, is in charge of the process, while the parties control the content. In ?evaluative mediation?, however, the mediator makes suggestions as to the likely outcome of the dispute. This process is often known as ?conciliation? and is probably best known because of the work of the Advisory, Conciliation and Arbitration Service (ACAS). The ACAS conciliation service provides a route to avoiding tribunals in employment-related disputes.
The Centre for Effective Dispute Resolution offers more options. Take your pick from assisted stakeholder dialogue, brokered talks, independent chairing, independent review, facilitated visioning and planning, pathfinder mediation, project mediation and scheme design, to name a few. The common point with all these processes is the intervention of an impartial third party whose presence will enable the parties to take a step back from their dispute and view it with less emotion ? something that generally makes settlement easier.
ADR in the action
The neutral third-party styles described can work well in the arts sector. On one occasion I received a call from a venue in dispute with a visiting company over a cancellation. I advised them by presenting the options they appeared to have, and inviting them to think about these and come back to me if they wanted to discuss them further, or if there were further developments. Shortly after I had another call ? this time from an Independent Theatre Council (ITC) member company? who had a dispute with a venue over a cancellation! I advised them in a similar way. A few calls later both came back to say that the dispute had been resolved ? more easily than expected. This type of scenario is not unusual, which is why the ITC now offers resolution services alongside its advice services.
Systems in place
ITC, along with the other theatre-management bodies TMA and SoLT, already had a long-standing arbitration system of its own. The Theatre Council, the Small Scale Theatre Council, the London Theatre Council and the Variety and Light Entertainment Council are all bodies set up to enable management and Equity to jointly resolve disputes arising out of the relevant Equity agreements. They are close to arbitration in style, with a panel of experienced practitioners from both Equity and the management body hearing each party?s case and evidence and giving a binding judgement. Similar arrangements exist with the Writers Guild of Great Britain.
The Chartered Institute of Arbitrators operates dispute resolution schemes for the Musicians Union (MU) and the International Artists? Managers Association. These schemes are based on something called ?med/arb? ? yes, a hybrid of mediation and arbitration. The MU found that this form of dispute resolution led to a settlement where one party was perceived as the winner and one as loser. In a pure mediation this should not be the case since the parties reach their own settlement; here the process allows for any issues not settled by mediation to be resolved by binding arbitration. To avoid friction within the membership, the MU now advises members with claims against other members to use the county courts in the hope that the pre-court mediation service will settle the dispute. It restricts its own service to disputes between members and non-members.
Louis Castellani (right) describes a copyright tribunal case. This very formal forum deals specifically with disputes relating to collecting society licences (e.g. PRS, MCPS, PPL). The Tribunal considers cases where a claimant feels that they have unreasonably been refused a licence by a collecting society or considers the terms of an offered licence to be unreasonable. This is quite a limited area so cases are rare. The World Intellectual Property Organisation (WIPO) offers arbitration and mediation services for copyright disputes, something that should precede a tribunal; however, their reports indicate that most take-up of this service is for domain name and patent disputes, rather than copyright in artistic work.
ADR may be intended as an alternative to court proceedings and, in many cases, it is only cheap in comparison with the cost of going to court. However, it provides tools that can take the heat out of a whole range of issues, often enabling a solution to be found long before the stage where a court or tribunal action is even considered.
Sources of information on ADR:
Chartered Institute of Arbitrators:
http://www.arbitrators.org
Centre for Effective Dispute Resolution:
http://www.cedr.co.uk
World Intellectual Property Organisation:
http://www.wipo.int
Copyright Tribunal information:
http://www.patent.gov.uk/copy/tribunal/index.htm
County court mediation:
http://www.courtservice.gov.uk/cms/media/mediation.e_pdf
ACAS:
http://www.acas.org.uk