Mediation is a type of alternative dispute resolution to litigation. Unlike litigation, where a judge has the final say on the outcome of a dispute, mediation is a process in which a mediator, who is a neutral third party, helps parties in dispute resolve their dispute together. There are no plaintiffs or defendants in mediation, just parties seeking to resolve their conflict.
No, mediation can also be used as a tool for parties who are at an impasse in a deal negotiation.
Neutral third party means that the mediator will not favor either side in a mediation. The mediator’s role is not to judge you or assess the merits of your argument in a dispute. The mediator does not represent either party. Instead, the mediator facilitates discussion and raises questions to help the parties assess their own perspectives and alternatives, and assists them in addressing their needs and interests. The mediator’s role is to guide the parties to a mutually satisfactory resolution of their differences.
There are several benefits of mediation:
a. Saves Time and Money – Mediation avoids long drawn out litigation, which is very expensive, time consuming and emotionally draining. The adversarial nature of litigation almost always negatively impacts relationships. By contrast, mediation is a faster, less expensive, more satisfying way to resolve conflicts. In mediation, a dispute may be resolved in one or several sessions, allowing the parties to move on from the dispute, saving time and money. Litigation can go on for years, with parties submitting motions and conducting depositions and discovery, a process by which the parties must reveal their evidence to the other side.
b. Parties Have Control – In mediation, parties control the outcome of their settlement rather than having a judge, who does not know the parties, determine the outcome. Mediation gives the parties an opportunity to find solutions that can be creative and forward looking to resolve conflicts, such as a particular credit, title or future business. In litigation, solutions are legalistic and focused on the past. The only remedy generally available in litigation is financial damages, which may not address all the parties’ needs as effectively as a more creative resolution.
c. Preserves Relationships – Mediation can preserve the parties’ working relationship in the arts, entertainment, and sports industries. These industries tend to be small and parties will likely encounter each other over and over again.
By improving the parties’ relationship, mediation makes it possible for the parties to work together again if they so choose. In contrast, doing nothing allows the dispute and bad feelings to fester and going through litigation destroys the parties’ personal or business relationships.
d. Clears the Air – Parties will also have an opportunity to air their feelings about the dispute. At the mediation, the parties may discuss any issues they have with each other in a respectful way, which a court would most likely not address.
The aim of mediation is a settlement tailored to, and determined by, the parties, focusing on their needs and interests.
Generally, a mediator will first ask each party to speak openly about his or her side of the dispute or problem. Then, the mediator will assist the parties in figuring out what types of solutions fit their needs, what is important to each of them, and what options for settlement may resolve the dispute.
Mediation sessions last three hours. Sometimes disputes cannot be resolved in the first mediation session. VLA’s MediateArt program allows up to three, three hour mediation sessions. No more than one session takes place on each day.
Mediations are confidential, except under very specific circumstances. You may not discuss what is said at the mediation. This also means that you may not use what was said in a mediation to benefit you in a litigation.
No. As with all settlement negotiations, the communications of a mediation remain confidential even to a court of law.
No, unless you and the other party come to an agreement and sign a Memorandum of Understanding. Then, you both will be bound to the terms of the Memorandum of Understanding, as you would with any written contract.
You will be in exactly the same position as if there hadn’t been a mediation.
No, arbitration is a different type of alternative dispute resolution. In many ways, arbitration is similar to litigation. Unlike mediation, arbitration is an adversarial process. Arbitration is usually binding, and like litigation, a final decision maker determines the outcome of the dispute. Arbitration generally dispenses with the discovery process, and therefore, may be faster than a full-scale litigation.
In VLA’s MediateArt mediations, two mediators will help facilitate a resolution among the parties. VLA selects the mediators for the mediation, and they will be the same mediators throughout the process. The mediators are donating their skills and time to the mediation.
No, you do not have to become a member of VLA to use this service. The service is open to the arts community.
Yes, there is an administrative fee to open the file, and each party in the mediation pays for each mediation session. Please contact the Art Law Line at (212) 319-2787 ext. 1 for more information on the cost of MediateArt.
Yes, you may bring an attorney to the MediateArt session.
Yes, VLA can assist you in finding an attorney to advise you before and at the mediation. Please contact the Art Law Line at (212) 319-2787 ext. 1 or complete an online request for legal assistance.
Mediators are frequently attorneys, but do not have to be. VLA also has artists who serve as mediators for the MediateArt program.
For information, please call Kristine Hsu, VLA Legal Fellow, at (212) 319-2787, ext. 11, or e-mail her at firstname.lastname@example.org, for a fee schedule and more information.