Unmasking ADR in the Entertainment and Creative Industries Part 1/2

By Charlotte Tran

UNMASKING ADR IN THE ENTERTAINMENT AND CREATIVE INDUSTRIES (PART ½)

In films and any other art forms, dispute resolution mechanisms such as mediation and arbitration are often portrayed through the lens of dramatic theatricals. Thus, they are not necessarily accurately reflecting the implementation of ADR in practice. Interestingly, in certain circumstances, the art itself is also the main subject of the conflict. For example, a dispute might occur between a music production agency and an artist over a representation agreement. 

In movies, the parties involved in such art disputes are typically directed towards litigation instead of ADR. However, such portrayal is contrary to the strong use of ADR in reality for these types of conflicts. Accordingly, this blog post will provide further clarity on how ADR is used for dispute resolution in the entertainment and creative industries, while referencing certain real-life examples. 

When examining the famous case of Harvey Weinstein and the allegations brought against him, it is noticeable that Weinstein and other top brass in the industry tend to opt for signing a non-disclosure agreement (NDA) and using out-of-court settlements with the complainants or victims.[1] Once allegations against any big names in the industry come forward, their reputation, careers, financial aspects and relationships are exposed to high risks. Thus, they tend to opt for dispute resolution solutions that are efficient, speedy and that would keep the details of their case away from the public eyes and the media’s chase. 

In its essence, ADR mechanisms fit all the elements above as ADR procedures are private and also more expeditious than litigation.[2] Furthermore, judicial tribunals nowadays strongly push for the use of ADR mechanisms to lift the burden of court dockets and also to increase the efficiency of resolving such disputes, especially in the context of high value disputes like those in the entertainment and creative industries.

Despite the fact that mediation and arbitration are the two most common forms of ADR used in such disputes, negotiation remains the parties’ first attempt at dispute settlement. Negotiation allows the parties to come together in an amicable setting in order to settle a dispute. It also allows the parties to have full control over the process and the outcome of the negotiation, by, for example, protecting the negotiation with a confidentiality clause. The conduct of the negotiations also varies per jurisdiction, as sometimes it can involve the presence of a practice lawyer, and other times the parties can invite witnesses during the process. 

On the other hand, mediation requires the direct involvement of trained individuals (mediators) to bring the disputing parties together and coordinate the settlement for a favourable outcome. At the same time, arbitration carries the most resemblance to litigation and can be regarded as a “simplified version of a trial”.[3] The process will be monitored and coordinated by an arbitral panel, which can consist of one mutually selected arbitrator or a combination of two arbitrators from each party along with a third, presiding arbitrator.

The next blog post will further explore examples of the application of ADR mechanisms in practice in art related disputes to better understand their advantages as well as their disadvantages.

[1] Alternative dispute resolution in the creative industries (Crefovi) https://crefovi.com/articles/alternative-dispute-resolution-in-the-creative-industries/ accessed 01 June 2022.

[2] Ibid.

[3] Ibid.