Lawyer Monthly - November 2021 Edition

hy do the creative and cultural industries have a need for mediators specialised in that field? Whether the industry involves fine art, writing, publishing, music composition, performance, recording, theatrical presentation, content production, distribution, game design, app development or social media exploitation, there is one common element that is seldom fully appreciated by those from the outside. That element is the creative process. By its nature, the creative process is fuelled as much by emotion as reason, if not more so. Motivations go beyond the ordinary commercial goals found in other mainstream industries. Most often the activities are project-specific, time-sensitive and on a fixed budget. A mediator who has had first-hand experience in the areas in question and appreciates these factors and the relative objectives and power issues among the parties is more likely to help them achieve a satisfactory result. Has there been any significant increase in alternative dispute resolution in the sector over the years? Apart from the formalised w Improving Dispute Resolution in Cultural and Creative Industries Artists and other creative professionals are rarely in a position to resort to litigation. However, what avenues exist for alternative dispute resolution in the sector have also proven to be inadequate. This month we hear from leading entertainment lawyer and mediator Steve Levitan, who explains the obstacles standing in the way of effective mediation and arbitration in the cultural and creative industries and offers his opinion on potential solutions. EXPERT INSIGHT 47 NOV 2021 | WWW.LAWYER-MONTHLY.COM processes covered in collective bargaining agreements with the likes of the Writers’ Guild of Canada and ACTRA, I have not seen any significant amount of alternative dispute resolution – whether it is mediation or arbitration or a combination of the two. This is likely because there is no dedicated body of practitioners to serve the need. Clearly, litigation and court action are far too slow, expensive and uncertain to be of use. I am afraid that the pattern usually is that the party with the best financing and the least emotional investment in the project usually gets their way. Artists and creators are more likely to give in just so that they can continue to do the work that they are committed to and passionate about. Why is the traditional court system not necessarily a good fit for resolving disputes in the creative industries? The traditional legal system is not a good fit in most cases for pretty obvious reasons. Engaging lawyers is expensive, the litigation system is slow and costly, the outcome of a trial is an imposed decision rather than a mutually arrived at outcome and perhaps more importantly than anything, the process is adversarial. In creative and cultural industries, the preservation of a good working relationship is of critical importance. This is so not just for any given project but for the ongoing careers and enterprises of both parties. What other obstacles stand in the way of more equitable dispute resolution in the cultural and creative sector? A key challenge in resolving disputes in the creative and cultural sectors is the nature of the creative process itself and the dynamics of the relationships involved. Understanding the egos, emotions, passions, personal expressions, biases and matters of taste have as much to do with the success of a dispute resolution as do matters of finance, commerce and the law. Again, that is why it is so useful to have a mediator who has been personally involved in the same or similar activities. Have you encountered these obstacles in your own work? Yes, I have. In my 40-plus years as a professional in the sector I have only encountered one situation that needed to proceed to some external means of dispute resolution. It was a situation where a US based broadcaster decided to not fulfil a precommitment to the third season of a television I am afraid that the pattern usually is that the party with the best nancing and the least emotional investment in the project usually gets their way.