Mediation enabled the interests of the Association of British Concert Promoters and the Performing Right Society to be aired in the presence of a neutral third party. Louis Castellani explains the process.
When it comes to protecting or enforcing commercial rights, three key principles are often uppermost in the mind of any modern, prospective litigant to resolve any dispute about those rights quickly, cheaply and (more often than not) privately. For many years, a costly trial was the only way to settle a dispute, but in recent years the English Courts have been keen to promote the benefits of Alternate Dispute Resolution (ADR) in helping parties who are otherwise locked in a costly, time-consuming legal battle. ADR can be all the more relevant for a sector like the arts, where parties are often registered charities or publicly funded (at least, in part), or, dare I say it, operating on ever-tighter margins.
One of the most popular forms of ADR is mediation. The parties appoint and pay an independent, qualified mediator to work with them to see if a solution to the dispute can be found. All discussions are held on a ?without prejudice? basis, meaning that they usually cannot be referred to later on in court if mediation fails. If no solution is found, then the case continues, but if mediation is successful, the parties will work with the mediator to come up with a written agreement containing the terms of settlement. A joint press statement announcing that the dispute is happily over is frequently included as a term of settlement where the dispute has generated media interest, and a confidentiality clause in the agreement is a popular option where there is a strong desire to keep under wraps commercially sensitive issues. Indeed, the desire to avoid having to disclose evidence at a trial can be a prime motivating factor for choosing to use ADR.
The success of mediation really depends upon the approach the parties have to it. The mediator will expect the parties to understand that if they wish to settle their dispute, an element of compromise is going to be required; mediation is not meant to be a dress rehearsal for a trial. Also, if the parties are simply going to attend mediation because they have been ordered to do so by the Court, then a mediator is going to find it an uphill struggle to bring the dispute to an end. Equally, it can be difficult for a mediator to grasp the issues when the backdrop to the dispute is a specific industry or sector, requiring specific knowledge to really understand what is driving the parties. In that instance, the parties should educate the mediator in advance as best, and as neutrally, as they can about the particular industry or sector involved or, if they can, identify a mediator who has a degree of relevant specialist knowledge from the outset.
A recent case highlights the benefits of mediation. In Association of British Concert Promoters (ABCP) v Performing Right Society Ltd (PRS) (2003), ABCP filed a Reference in the Copyright Tribunal in order to challenge one of the PRS tariffs known as ?Live Classical?.
In a nutshell, both ABCP and PRS needed to prove that the current tariff was either unfair (according to ABCP) or fair (PRS? position). The main issues between the parties were therefore going to be based on factual evidence in the most part rather than on law, which, in turn, would lead to a great deal of evidence being taken from various sectors within the classical music sector. The case was referred to a mediator, whose role was to use that evidence in order to understand each side?s perspective, the strengths and weaknesses of their respective arguments, and then, if possible, to guide the parties towards viable settlement terms.
The mediation was completed in a fraction of the time and at a fraction of the cost than would have been the case had a tribunal been needed to resolve the dispute. It was particularly successful for both ABCP and PRS because, as in so many cases, mediation enabled two parties with a common interest and who had an ongoing commercial relationship to sit down in the same room and talk in the presence of a neutral third party. It was successful on another level because the terms of a revised tariff were agreed and announced to the press in a joint statement, saving the costs and lost management time of a lengthy tribunal hearing.
Mediation is not, however, for everyone. The old saying ?it takes two to tango? very much applies to any form of ADR, especially mediation. Dramatic walk-outs, well-rehearsed or improvised, do happen. More often than not though, those parties will experience first-night nerves at the doors of the court and do the same deal they could have done at mediation months earlier. Now where is the sense in that?
Louis Castellani is a solicitor in the Litigation Group of Harbottle & Lewis LLP and acted for the ABCP in its dispute with PRS.
e: louis.castellani@harbottle.com