By Phillips, Gerald F.; Tatum, Arianna
Dispute Resolution Journal , Vol. 54, No. 2
In a survey conducted in the entertainment industry, 63 % of the house counsel and 83% of the outside counsel characterized their experience with mediation as "excellent or good,"' and 66% and 75% respectively reported that mediation "very frequently" resolved the dispute. Patricia Glaser, of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, one of the pre-eminent entertainment litigators, at a UCLA conference on ADR, said, "I cannot think of any dispute that should not be mediated."
U.S. Attorney General Janet Reno, in a Law Day address, urged American lawyers to employ ADR: "The Department of Justice has made exciting progress in using appropriate dispute resolution to settle all types of civil litigation."' She said that the department was promoting its use because resolving a commercial dispute through ADR can be quicker and a lot cheaper than litigation, and that clients appreciate the opportunity to avoid the disruptive nature and hostility that litigation often generates. "We at the Department of Justice," she said, "have an obligation to citizens with whom we have disputes, to resolve them with civility, and to avoid, when we can, the scorched earth approach to conflicts that litigation so often presents."
The growth of mediation in the entertainment industry has not been as explosive as one might expect, although it is becoming more acceptable each year. Sixty percent of the counsel in the survey stated that their company will "very likely" endeavor to use mediation in the future. The reluctance to use mediation more often is startling, especially in this litigious industry where the cost of litigation continues to escalate.
Why then is there a reluctance to use mediation, when many describe it as a "win-win process," where the experience of many has shown it to be effective in resolving controversies, and where the Justice Department is promoting its use? Various explanations are advanced: (a) management is not knowledgeable about mediation; (b) few, if any, corporations are structured to systematically assess all claims to determine if mediation should be tried; (c) counsel are normally trained to be litigators, and few with respect to mediation and arbitration; (d) house counsel do not select outside counsel who appreciate that the real goal when presented with a lawsuit is to quickly and less expensively resolve the dispute, and who will work to preserve business relationships; (e) the business executives directly involved often wash their hands of the litigation, explaining that it is for the lawyers to resolve; (f) house counsel do not provide strict management control of the outside counsel and do not recognize that their task is to work with outside counsel to determine a plan to end the controversy; and (g) the lower levels of the company may perceive that it would be professional suicide to challenge the boss and recommend mediation.
This article will examine these and other reasons why management and counsel do not champion mediation to resolve disputes between the corporation and its vendors, licensees, distributors, co-venturers, etc. It will endeavor to address why it is still the knee-jerk reaction, when a complaint is served, for corporate counsel to forward the case to outside counsel who immediately start down the costly discovery road and motion practice. Initially, little or no thought will be given to discussing with opposing counsel that the parties retain a third party, a mediator, to help them to resolve the dispute. Usually only if there is a management dispute structure in place where the corporate policy is to analyze each dispute to determine the possibility of using mediation will counsel, in house or outside, discuss using mediation.
It has been suggested that corporations should establish an internal management dispute resolution program designed to overcome the causes which deter the use of mediation and which provides a program to educate management as to the benefits of using mediation. …