Yesterday I had a chance to help train mediators for a California Lawyers for the Arts program that provides mediation and other ADR services for artists. Calfornia Lawyers for the Arts also runs a well-developed lawyer referral program. What was interesting to me about the group’s ADR program is the separation they try to maintain between legal services and ADR services. They take care to screen new cases to determine whether the client needs legal advice or resolution of a dispute, and they instruct the program’s mediators not to give legal advice during mediation sessions, instead only to suggest to participants that they consult an attorney if they feel they need legal advice. In mediation parlance, it’s a facilitative, rather than an evaluative service. In that way, the mediator can be truly neutral about the outcome, not preferring any particular solution because it seems more in accordance with the way the legal system might resolve the dispute.
Some of the lawyer volunteers have difficulty overcoming their extensive training and experience in how to approach what seems like a legal problem. (To a lawyer, every problem may seem like a legal problem.) When lawyers listen to people describing a situation, they are naturally prone to spot the legal issues. Do the parties have an enforceable contract or partnership agreement? Is someone infringing copyright? Do they have a valid trademark? These might be important questions, but they are not necessarily the first questions to ask in trying to resolve a dispute.
Instead a mediator in these kinds of disputes needs to focus on the concerns the parties themselves bring to the table. We practiced some mock mediation sessions resembling the types of problems that are actually brought up by artists: one was a conflict between a theater company’s business director and artistic director over the commercial potential of some of the company’s productions. Another was a dispute between members of a rock band, after one of the players quit. The issues driving such disputes have to do with creative control, feelings of distrust and betrayal, and numerous other misunderstandings. In mediation these problems are best resolved by helping the parties understand and appreciate each other’s viewpoints, rather than by explaining their rights and responsibilities. That leads to solutions the parties themselves feel comfortable with, rather than solutions that the law might impose on them. Moreover, in trying to solve many of these kinds of problems, for example deciding how many experimental-type theater productions a company should put on, the law does not provide any answer at all.
Unlike some of the litigated disputes I have been involved with, this kind of program is therefore less about trying to predict how the court might resolve a particular dispute, which is how a lot of litigated disputes get resolved, even in mediation, and more about paying attention to the parties’ emotional, artistic, and business needs. For more information about volunteering for, or obtaining a referral from this program, see the California Lawyers for the Arts website.