L to R: Daniel Djanogly, Andrew Hildebrand, Irvinder Bakshi, Edmund Cullen QC, James Farrell and Alan Watts
On 7 June 2017 the London Branch, in association with the British Screen Advisory Council, held a seminar entitled “ADR in Film and Media Disputes”, generously hosted by Herbert Smith Freehills.
The seminar was moderated by Daniel Djanogly (CVR Global LLP, London Branch Committee) and chaired by James Farrell (Herbert Smith Freehills). The panel of distinguished experts comprised Edmund Cullen QC (Maitland Chambers), Andrew Hildebrand (In Place of Strife) and Alan Watts (Herbert Smith Freehills).
Following an introduction by Irvinder Bakshi (London Branch Chair) Daniel Djanogly introduced the speakers and the topic before handing over to James Farrell.
Alan Watts focused on the pros and cons of mediating film and media disputes and commenced with an overview of disputes and involved parties that often arise in the entertainment sector. He suggested particular consideration of the parties involved, with reference to the benefits of choosing mediation for speed, flexibility, informality, confidentiality, potential cost savings and preservation of relationships. He noted that speed is beneficial if a dispute arises mid-production. Alan Watts noted that some relief requires a court order and raised a number of strategic concerns about the use of mediation, highlighting the risk of parties using the process for tactical reasons instead of making a genuine attempt to resolve the dispute and the lack of availability of an insight into the track record of potential mediators. He concluded with a comment that WIPO offers industry rules for mediation and arbitration and JAMS maintains a roster of entertainment industry experts.
Andrew Hildebrand explained that the damage is done once such disputes become public knowledge whereas mediation keeps such disputes out of the limelight. Creative solutions can also be found and relationships salvaged.
Andrew Hildebrand observed that 50% of film and television contracts stipulate the use of arbitration to resolve disputes while highlighting particular features of the entertainment industry. He addressed features of the film and media sector, which include its international nature; the tension between commercial and creative types; the complex financial arrangements that often underpin productions, managed by business affairs teams; egos; the real sense of community at the individual and corporate level that makes the industry less litigious than most; and the role of business affairs teams in offsetting disputes.
Andrew Hildebrand lamented the lack of knowledge of mediation in the entertainment industry, and its ability to add value when negotiations break down. He advocated the use of mediation pre-action, especially when drafting dispute resolution clauses.
Edmund Cullen QC addressed the practicalities of mediation, identifying steps to be taken on the day. He emphasised the importance of the timing of mediation because parties may feel compelled by the risk of adverse costs consequences to attend with no real intention to settle.
Cementing Andrew Hildebrand’s views, Edmund Cullen cautioned that parties should select a mediator who adds value to the process, had knowledge of the sector and was trusted by the parties.
He provided tips to maximise the prospects of a successful settlement on the day such as requesting a room with windows; thought on those attending in case some might become witnesses; avoiding the unnecessary use of counsel; keeping opening statements short and realistic, including recognising the weaknesses in the client’s case and explaining how you intend to overcome them; creative thoughts on settlement terms incorporating where relevant third party rights; finally not seeking the impossible whether it be any deal or the deal itself.
The session concluded with an engaging question and answer session led by James Farrell, following which Irvinder Bakshi thanked the attendees for their contributions and extended the thanks of the London Branch to the speakers and host. Thereafter the speakers and attendees enjoyed a reception provided by Herbert Smith Freehills.