Sander Gibson is a business law attorney specializing in entertainment law with Gascon & Associates LLP in Montreal, and acts as an arbitrator and mediator in entertainment and commercial matters in Canada.

In a previous edition of Playback, I examined the principal advantages and disadvantages of using traditional private commercial arbitration as an alternate method (that is, rather than court litigation) of dispute resolution in the Canadian entertainment industry.

However, there are several other methods of managing and resolving disputes, including those explained below - in increasing order of intensity of complexity, contestation and cost. These methods can also be used to help the parties overcome negotiation hurdles blocking their conclusion of new agreements.

Mediation

Also called "conciliation," mediation is both a dispute- and risk-management mechanism as well as a dispute resolution mechanism, whereby a neutral person, the mediator, is engaged to facilitate the negotiation and communication among the parties, but makes no determinative decision.

The mediator leads and structures the negotiations, and helps them brainstorm so that they themselves might create what they believe is a fair solution to their particular dispute. While the mediator's chargeable time is a function of the complexity of the issue and the number of sessions agreed upon by the parties, his/her hourly rate is typically shared by the parties.

Mediation's principal forms are "pure" or "facilitative," and "evaluative," although many mediations combine elements of both. In facilitative mediation, the mediator helps the parties and counsel negotiate and work with each other in a manner that induces them to devise solutions to their own dispute, but does not give his/her own opinion or suggestions.

In evaluative mediation, the parties and counsel do not work together to find a solution, but rather argue their cases to the mediator, who evaluates them, questions the parties and counsel as to the strengths and weaknesses of their arguments so that they do reality checks of their positions, then tries to persuade them of his/her own non-binding solution, possibly giving them his/her opinion as to the amount that should be paid or other appropriate settlement.

Facilitative mediation is more "rights-based," whereby the mediator focuses on the parties' legal positions, whereas evaluative mediation (also called "principled mediation") is more "interest-based," whereby the mediator focuses on getting each party to understand the interests underlying, and the motivation for, the position of the others, and focuses on each party's needs as opposed to its demands.

Through mediation, the parties might then be able to reach agreement on the disputed grant of rights, residual/royalty and net profits payments, whether consent was unreasonably withheld, and what is, or is not, a standard or customary industry practice.