What is a dispute?
Differences of opinion are part of everyday life. Often another person’s point of view can provide a refreshing new slant on an issue or a useful counter-balance. But what do you do when this isn’t the case – when failure to agree opens up a whole new set of problems? For instance:
- What happens when you co-produce a new work and can’t agree who owns the copyright?
- What happens when you commission a designer and then the director doesn’t like their work?
- What do you do when you feel that an employee is not in a post that suits them but they are convinced they are doing a great job?
Is the ideal way to settle a dispute. You sit down together, look at all sides of the problem and find a compromise that is acceptable to everyone. Unfortunately, human nature being what it is, once a dispute has become a problem the parties may not be happy to sit down together at all, let alone work together to find a mutually acceptable solution.
At the other end of the spectrum, you can threaten to sue. Going to court is a time consuming, money consuming business and can be a very public process (a High Court Case over copyright in the play 'Stones in His Pockets', for instance, made the front pages of the newspapers).
This used to be seen as the main alternative to litigation. If your dispute arises from a contract it may have a clause which states that disputes will be settled by arbitration. If so the law now says that you must do this before you go to court, if you do not and there is a court case you may find that even if you win you will be penalised in costs. Arbitration is often seen as 'alternative' dispute resolution but in reality it is similar to a court hearing in many ways. An individual or panel will hear your cases, listen to evidence and prescribe a solution. Their decision is binding on the parties. Arbitration isn’t cheaper than going to court, often it isn’t much quicker. The advantages it offers are privacy (which is why it is often used for commercial disputes) and flexibility. The Arbitration Act 1996 offers the parties to arbitration considerable input into how their arbitration is run and who their arbitrator(s) will be. Arbitrators can be chosen on the basis of their industry knowledge, their legal experience or their experience as arbitrators – in court you do not chose your judge.
Small Scale Theatre Council
The Theatre Industry has had its own dispute resolution structures – the Theatre Councils – for many decades. These provide a format similar to arbitration for the resolution of disputes that relate to the Equity contracts. A panel with representatives from Equity and the relevant management body (ITC, UKTheatre or SOLT) will hear the case and reach a decision. These hearings are private, generally swift and free to members of the relevant organisations. Similar provisions apply for disputes arising from the ITC/Writers Guild Agreement and the ITC/Unite Agreement for Administrators.
What do you do if you have a dispute that:
- Is not related to the Equity contracts?
- You have not been able to talk through and solve?
- Does not merit the time and expense of either a court case or arbitration?
Mediation is an increasingly popular way for disputes to be settled. It is not new but it has risen in prominence over the past decade and is now mandatory before many employment tribunal and court hearings.
In mediation the parties effectively settle the dispute themselves. The mediator’s role, unlike an arbitrator or a judge, is to guide them rather than to prescribe a solution. However the presence of the independent, neutral mediator does provide advantages over unfacilitated negotiation. A skilled mediator will shift the parties’ focus from re-examination of old problems to the search for a solution – a major step forward. The introduction of a third party into the proceedings often adds a sense of formality to the proceedings and an enhanced feeling of purpose.
Most mediations will begin with a plenary session where each party makes a statement of their case. From then on much of the process consists of separate – confidential - discussions between the mediator and each party. Ideally these sessions will not go over the rights and wrongs of the case or the relevant law, they will explore ways to solve the problem and rebuild the relationship.
Mediation is a confidential, private process. It is swift, most mediations are settled in a day. It has a high success rate (about 75% of cases settle). A mediated solution is not automatically binding on the parties but it is usual for the parties to agree that when settlement is reached it will be recorded as a binding contract between them.
How can ITC help you solve disputes?
ITC is a party to the Small Scale Theatre Council mentioned above and can also assist in settling disputes that do not arise from union agreements. We can provide the space and time for dispute hearings. ITC’s Legal & Industrial Relations Manager Jackie Elliman is a CEDR Accredited Mediator and a Fellow of the Chartered Institute of Arbitrators. Where a dispute is between ITC members and they both agree to an ITC staff member mediating, the process will often be free of charge. If a non-member is involved a small charge will be made to them. If you have a problem which ITC may be able to help solve in this way contact Jackie Elliman on 020 7089 6823 or email firstname.lastname@example.org.
Some other ADR terms explained (these definitions are from the Centre for Effective Dispute Resolution):
Conciliation is similar to mediation, but a conciliator, unlike a mediator, can suggest their own a solution for the parties to consider.
Neutral Evaluation is a private and non-binding technique whereby a third party; usually a judge or somebody legally qualified, gives an opinion on the likely outcome at trial as a basis for settlement discussions.
Expert Determination is a private process involving an independent expert with inquisitorial powers who gives a binding decision.
In the UK, adjudication involves the use of an expert to rule on a technical issue and is primarily used in construction disputes.
Talks are often deadlocked because of the number of parties involved and the myriad of sensitive issues that run between some or all of them. An independent intervention can act as an impartial, creative force to kick start 'talks about talks', providing momentum towards optimal results. CEDR Solve has brokered two of the largest successful mediations in English legal system history.
A dispute prevention mechanism where a mediator is appointed at the outset of a long project or major business relationship, to act as the point of contact when communication problems are anticipated or arise.
© Independent Theatre Council