The Enhanced Role of Mediation in Artistic and Creative Disputes

As I began my research for this article, I found claims for the proposition that in California anywhere from as low as 80% to as high as 98% of all lawsuits settle before trial.

Personally, my experience doing litigation for twenty plus years, and now mediation for the past 9 years, in Oakland, Walnut Creek and the general San Francisco Bay Area makes me believe that the number is actually closer to the higher end. The debilitating costs, the emotional turmoil, the prevailing atmosphere of uncertainty and the staggering attorney fees will drain and exhaust all but the most well-heeled and unflappable litigants. It is hardly a wonder that most cases settle.

For thirteen years I was the litigation partner for a small firm that specialized in intellectual property, with an emphasis in the music recording business, film and the arts. During that time I observed that artists are particularly ill-equipped to endure the slings and arrows of civil litigation. The mind numbing stress and unending umbrage of actually being a participant in litigation is especially wearing on those litigants who make their living using their artistic sensibilities. Very few creative people can weather such a storm without having their creative abilities, at least temporarily, significantly diminished and, perhaps permanently, tarnished.

I have also observed, and anecdotal research with colleagues confirms, that an artistic dispute or conflict does not need to rise to the level of full-blown litigation in order to ruin an otherwise creative environment. Whenever an artistic product is the result of a collaborative effort, the situation is ripe for conflict and the resulting spoliation of the creative process. Collaborative artistic endeavors involve creative people, often with large egos, working together in a give and take dynamic to forge from their disparate visions a unified work. Although these creative types are usually intelligent and capable, they often lack the experience, tools and skills necessary to work through impasse and resolve inter-personal communication failures.

Oftentimes the event that causes an irreparable split is the harbinger of that most feared of all happenings, success. Every entertainment attorney who practices in the area of music recording has probably worked with a young group that self destruct on the verge of securing a recording contract or, just as bad, while in the studio working through a recording fund. Maybe the worst scenario is when things blow up after a successful record release, as they often do.

You don’t have to be a psychologist to know that many people live with a fear of success. Perhaps it has to do with facing up to doing what they always thought they wanted to do and fearing that they will ultimately fail. I don’t know, and for purposes of conflict management and mediation, it really doesn’t matter. The fact of the matter is that the muse of creativity is a fickle, mysterious and capricious creature. Sometimes significant interpersonal conflict is an integral part of the process. It is not for a mediator, lawyer, manager or label rep to create an enduring friendship between the collaborators. That’s not their job and such an environment could be equally discouraging to any given group’s particular brand of creativity. The goal is pure behaviorism. To manage the conflict in such a manner that allows the authorship of satisfactory end product. Period. With a sufficiently limited amount of bloodshed, if necessary. The best way to assure obtaining that goal is for the parties to create a mutually agreeable plan.

The symptoms are almost always the same. It turns out that although everyone was able to work together effortlessly when poor and without prospect, once it seems as if they are going someplace, it turns out that there really are actions, mannerisms, personal styles, or ways of making creative contributions that are insufferable to one or more of their collaborators. And the object of these criticisms feels just as strongly about the accusers. That’s just the way it is, that’s why they call it human nature.

The good news is that for conflict management purposes the dynamic of treating the symptoms, or behavior, also has a hugely beneficial impact on the underlying causes. It is amazing what can be accomplished utilizing a specially trained mediator in a daylong session. To some artists, particularly young people and those new to being a professional, it can come as a revelation that they don’t have to be friends with their co-workers. They just have to be able to work together. Again, the goal is to manage the conflict, not necessarily to resolve it, to create a mutually agreeable way to work together.

It sounds so simple, but it’s often the case that once the participants get a handle on the fact that they don’t have to live out some Beatles’ movie fantasy of loving companionship, a cloud lifts from the room and sun shines in. You see it is OK not to like the people you work with and they need not like you. It is amazing how many times, at root; the key to managing workplace conflict is a variation of this theme. Of course, if the participants are basically friends and they are just attempting to memorialize the foundational agreement between them and things got momentarily hot, the relationship would still most probably be improved as a beneficial side effect of a specialized mediation experience.

The major problem occurs, and I hate to say this, when they seek legal representation to resolve the problem. There is no more polarizing an event then to introduce a lawyer into the situation. If one party has a lawyer then all need lawyers, direct communication becomes a thing of the past and expenses mount, as does resentment. Needless to say, early on each lawyer has issue spotted at least six bona fide causes of action and has an unassailable case, well-founded in law and fact. There is no guaranty of victory to any participant and the guaranteed loser is the creative process as it becomes ever increasingly unlikely that a satisfactory collaborative authorship will happen again.

It is time to stop treating the civil justice system as the only viable alternative to armed conflict and move disputes to conflict management and mediation services as quickly as possible. The undeniable fact of the matter is that suing in order to enforce civil rights is ruinously expensive, grindingly slow and often ultimately unsatisfying. Creative people should participate in the creation of their dispute resolution plan, not leave it to some judge or jury.

I know that my colleagues who are died-in-the-wool litigators will snort in derision at the very concept. How is one to mediate a case that is not yet ripe? Traditionally, cases have been referred to mediation after the filing of lawsuits, extensive discovery and, as often as not, pre-trial dispositive motions. This scenario guarantees that the participants are motivated to mediate and settle because they are physically and emotionally exhausted as well as financially depleted. Where once they were greatly concerned with, “the principal of the matter”, as their legal bills mount, their love affair with principal will usually fade. Perhaps they call this situation “ripe” because it’s starting to really stink.

I submit that there is no need to engage in the prolonged and expensive dance of civil litigation for most artistic disputes. Rarely are these conflicts document or factually intensive or otherwise demanding of extensive discovery. Rather than costly depositions, it is more productive for each side to hear the “testimony” of the other first hand, respond on the spot, experience the catharsis of stating their position to a trained mediator and productively work towards curbing their conflict. Occasionally certain facts must be established, or dismissed, in order to move mediation forward. As often as not these issues can be determined during a pre-mediation phone conference and dealt with informally at, or before, the mediation.

As we move into the new millennium and attorney fees, court costs and expenses continually escalate while artist compensations and the financial margins in the entertainment business erode; it is time to get smarter about how we manage conflict. It is essential that entertainment lawyers, managers, agents and other artist representatives recognize that disputes involving artists have to be handled with a creative approach and that the knee jerk reaction of resorting to litigation should be avoided. Every contract involving an artist could be improved by a provision that the parties agree in advance to mediate any dispute that arises and, should mediation prove unsuccessful, then a stipulation to engage in binding arbitration. Further, it would be well advised for artist management to monitor artist interaction for developing disruptive conflict and provide professional mediation as an early intervention, as does enlightened management in the wider business world.

Mediation and professional dispute resolution intervention, or facilitation, should be the primary technique utilized even where the parties are only engaged in heated negotiation, or where creative workplace relations are deteriorating and the tell tale signs of breakdown are just beginning to appear. So much better to get the participants into a forum conducive to communication early on, perhaps, short circuiting even the possibility of destructive rancor and finding yourself left with only a litigation option. An option that really does kill the goose that lays the golden eggs.