Alternative Dispute Resolution Service
Arts Law can assist you in resolving your dispute with another party through its Alternative Dispute Resolution (ADR) service, through which parties can access experienced and low cost mediators and experts.
To view Arts Law’s comprehensive ADR Guidelines, please click here.
What is Alternative Dispute Resolution (ADR)?
Alternative Dispute Resolution or ADR refers to processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR can also be used to mean ‘assisted’ or ‘appropriate’ dispute resolution. Sometimes it is used to include approaches that enable parties to prevent or manage their own disputes without outside assistance.
The creative industries are no exception when it comes to disputes. Filmmakers can fall out leaving a film project unable to be completed. Artistic collaborations falter over creative differences or misunderstandings as to costs, processes, and responsibilities. Bands split up unable to agree on ownership of music or what direction to take. Writers may be in dispute with a publisher over royalties. Such disputes are often characterized by the importance of the personal relationships involved. People who work within the creative industries often need, or desire, to work together on projects in the future and don’t want that opportunity sabotaged by a dispute over the current project. Often the parties – or at least one of them – to the dispute can’t afford the expense of lawyers and going to Court.
Where the only options are walking away or litigation, permanent damage can be inflicted on relationships and creative projects are often permanently stalled or prevented from coming to fruition.
ADR can provide a relevant, cost effective, fair and timely means of resolving disputes in a manner which, to the extent possible, preserves the parties’ relationships and creates maximum opportunity for projects to be realised and completed. Arts Law’s service offers the following ADR processes: mediation, expert determination and non-binding evaluation.
When you get legal advice from Arts Law in relation to a legal dispute (whether or not litigation has already begun), you can ask the advising lawyer to consider whether it might be suitable for ADR and which ADR process might be suitable.
What is mediation?
Mediation is a process of dispute resolution which encourages the parties in a dispute to isolate the issues, to develop possible settlement options, and to negotiate a resolution which is acceptable to them. Instead of having a judge, magistrate or arbitrator impose a decision, an impartial person – the mediator – facilitates the process and, if the dispute is resolved to the parties’ satisfaction, the mediator helps the parties to set out their solution in the form of a written agreement which will be legally enforceable.
In mediation the parties never hand over the power to make decisions to anyone else. The mediator cannot make or impose decisions on the parties. Settlement occurs only if the parties agree.
For more information on the advantages of mediation click here.
What is binding expert determination?
Binding Expert Determination is a ‘determinative’ ADR process in which an neutral third party, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute evaluates the dispute (which might include by hearing formal evidence from the parties) and makes a determination which is binding on the parties. It may be the entire dispute or particular critical issues which once determined may allow the parties to reach agreement on other issues. They may be legal or factual issues.
It is similar to arbitration however arbitration has well understood rules and processes and the decision of an arbitrator can be appealed to a court. Generally, the decision reached by the expert in a binding expert determination cannot later be appealed and litigated in court. However, there are situations where the process of expert determination is consistent with the rules for arbitration, in which case an appeal process may be available.
For more information on binding expert determination click here.
What is non-binding expert evaluation?
Non-Binding Expert Evaluation is an ‘advisory’ ADR process in which an ADR practitioner with expertise in the subject matter disputed considers and appraises the dispute and provides advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these may be achieved. Their conclusions are not binding on the parties but in many cases, an impartial third party view can help the parties re-evaluate their own positions and then resolve the dispute themselves. The expert evaluation may be in relation to the whole dispute or just some issues. Similar to expert determination it may be the entire dispute or particular critical issues. If settlement isn’t reached, this evaluation does not preclude either party from initiating litigation or pursuing other forms of ADR.
For more information on binding expert determination click here.
How does Arts Law’s ADR service work?
If you are interested in using ADR to solve your dispute, Arts Law can contact the other party and find out whether they are prepared to engage in the process. In some cases, there may be a contract which obliges the parties to try ADR.
Once the parties have agreed to conduct ADR, Arts Law identifies up to three suitably qualified mediators or experts from its panel who are available to assist the parties. If the parties can’t agree on which mediator or expert to use, Arts Law will decide.
Do I need to be a subscriber to Arts Law to access the ADR service?
To access the service you must either be an Arts Law subscriber or, alternatively, if you do not subscribe each party must pay a $100 administrative fee to Arts Law.
Are there any further costs?
Yes, the parties must also pay the mediator or expert directly. Arts Law recommends to its panel of experts and mediators that their fees should not exceed $100 per party per hour (exclusive of GST). The parties will be advised if their ADR practitioner charges more than this recommended amount. All parties are strongly encouraged to get legal advice before commencing ADR. Subscribers to the Arts Law Centre can get this legal advice from one of the Centre’s panel lawyers.
What happens next?
Once all parties agree on an ADR process and an appropriate ADR practitioner (expert or mediator) has been appointed, Arts Law’s involvement ends .The expert or mediator will contact the parties and manage the process from that point.
Read about a successful mediation here: Gordon Syron, Finding a Win/Win Solution Through Mediation