Mediation works in many cases and is much less pricey
The Great Recession has forced more modest expense accounts and slashing of jobs even at the toniest of entertainment law firms. Courts have cut staff and trimmed hours to make up for severe budget deficits. (Try calling any Los Angeles courthouse on Wednesday. They were closed.) What the downturn hasn’t done, however, is minimize lawsuits.
If anything, it’s gone the other way. Civil suits filed in Los Angeles Superior Court’s central office climbed 12% from fiscal 2008 to 2009, whether related to foreclosures, employment or plaintiffs simply trying to wring money where they can.
In tough times, people sue.
That’s where a new effort from a group of more than a dozen entertainment, sports and political figures comes in. They’ve recently launched the Entertainment Mediation Institute, which bypasses lengthy, expensive and even embarrassing legal battles by hashing out their gripes with a skilled neutral third party. James Mulholland, its co-founder and managing director, calls his work “shuttle diplomacy,” and it’s not hard to see why.
The concept is nothing new. Judges strongly suggest mediation as a way to resolve cases before trial — and it surely will be deployed more as the system slows down. But the idea behind the institute is to get a pool of skilled mediators who can dive right in with an understanding of showbiz issues in a way that a general practitioner cannot. Their senior mediators include attorneys David Braun and Irwin Russell, as well as John Schulman, formerly Warner Bros. general counsel and now chair of the entertainment department at Mitchell, Silberberg & Knupp. There’s also California Assemblyman Charles Calderon and Lakers vet Jerry West.
“All I can say is, people have to get out of the system. They have to try other ways,” says Mulholland, a longtime entertainment attorney and certified mediator and arbitrator, adding that it is a “rational, logical way for the parties to craft their own dispute resolution.”
Mulholland sees the need for a Hollywood corps of legal diplomats, given that even a garden variety entertainment case — like a dispute over client commissions after a star has leapt from one agency to another — can easily escalate into a volatile legal battle.
“In many ways (entertainment) is similar to politics as well,” Mulholland said. “There is a way you have to reach consensus with personalities, knowing what will work and what won’t.”
In contrast to arbitration, where a third party outside the court system renders a binding decision, mediation is like a stab at a settlement with fewer opportunities for posturing. The parties don’t face each other — too prone to personal provocation — and instead the mediator goes back and forth from room to room, trying to find common ground. When agreement is reached, paperwork is signed, and it all remains confidential.
This may sound like “can’t we all just get along” idealism, and the sheer force of personality can be insurmountable. Mediation efforts didn’t work in Clive Cussler’s case against Philip Anschutz’s Crusader Entertainment over the movie adaptation of “Sahara.” Instead the case has dragged on — now awaiting word on an appeal to the state Supreme Court — and the lingering question is who will have to bear the cost of the eight-figure legal bills.
Bert Fields, who represents Cussler, swears by mediation in other cases, such as when Harvey Weinstein and NBC Universal were at loggerheads after Weinstein sold “Project Runway” to Lifetime, following its wildly successful run on Bravo, and NBC won an injunction preventing it from being shown. Fields credits a retired judge in Northern California, Daniel Weinstein (no relation), a well-known mediator with his own practice, with helping to resolve the dispute, in a mixture of persistence and “pounding” on the parties.
As the adage goes, at some point, it became less about needing to be right and more about wanting to be happy. And in these tough times, we could escape back to “Runway.”