BY:STEVEN C. BEER
This Q&A was originally published in the Winter 2021 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Warning: producing documentaries can be hazardous to professional relationships. In the course of a typical production, collaborators may squabble over a variety of creative and business matters. Disputes could possibly involve project finance, editorial direction, distribution options, credits and, when reconciliation isn’t in the cards, the terms of a breakup.
Making a documentary film entails dozens of important decisions. When the film has two or more producers, the parties sometimes enter into a collaboration agreement requiring mutual approval over material decisions. But what happens when collaborators are at an impasse and there is no designated procedure to break a deadlock? Such disputes can derail a project, seriously strain relationships, drain emotions and waste precious time and money.
Courtroom litigation, the traditional way to adjudicate differences, is rarely a constructive or satisfying means to resolve these disputes. It’s not only expensive and time-intensive, but usually is focused on money damages rather than practical remedies. And too often the party with deeper pockets will prevail regardless of the legal merits.
A common means of resolving disputes outside of litigation is arbitration, where a retired judge or senior attorney conducts a formal hearing and renders a final and binding decision (subject only to a limited court review). The Federal Arbitration Act and state arbitration laws govern the process. Private administrative organizations, such as JAMS and the American Arbitration Association, will propose an impartial arbitrator who reviews briefs and evidence and hears testimony before issuing an award. As with litigation, the arbitration process is formal, adversarial, time-consuming and expensive.
Mediation of disputes is a practical alternative to litigation and arbitration. Instead of preparing pleadings, submitting motions, taking depositions or producing documents under subpoena, the parties, together with the mediator, self-manage the process and try to forge a settlement in which both parties’ needs are addressed. Often there’s more overlap of interests than the parties initially recognize and a mediator helps them discover it.
Unlike a trial or arbitration, where a judge or arbitrator renders a binding decision following an adversarial proceeding, mediation involves a neutral, mutually approved industry professional with an understanding of film production and distribution. This special awareness can help the mediator diffuse antagonism, find common ground and motivate the parties to come to an amicable settlement while preserving relationships. This is not a binding process, however, and the parties don’t need to accept where mediation has taken them.
A typical mediation begins with an informal discussion by each party summarizing their version of the facts and the proposed outcome. The mediator may initially meet with the parties together and then individually, first to frame the issues and then to move the parties closer to a resolution. The setting is private and informal (usually a conference room), which helps to reduce stress levels and encourages the parties to clear the air. Outcomes are often practical and tailored to address the specific issues under review. For example, in a dispute involving distribution options, the mediator can help facilitate a decision that best comports with the parties’ common objectives. Furthermore, unlike litigation, a mediation is completely confidential. The materials involved and proposals submitted cannot be revealed without joint agreement in subsequent proceedings should mediation fail and the dispute proceeds to arbitration or litigation.
Also among the advantages to mediating disputes are the relatively brief duration and modest cost of a successful procedure when compared to litigation and most arbitrations. In many instances the mediation procedure will last less than one day, so the cost is limited to the mediator’s fee and the fee of the coordinating organization. Most mediations involve the parties only. If they decide to work with legal counsel, that of course will be an additional expense.
Since mediation is voluntary, it is recommended that producers include a mediation clause in their collaboration agreements with language similar to this:
“Any claim, dispute, misunderstanding or controversy arising under, in connection with, or from this agreement, or breach thereof, shall be submitted initially to mediation conducted under the rules and procedures of [insert here: a mutually approved administrative organization].”
Some law firms have attorneys who have been trained as mediators and offer their services. Some mediators act independently of law firms. Two arts-related legal organizations that can help guide you to a skilled mediator are Volunteer Lawyers for the Arts and California Lawyers for the Arts.