While I have a University qualification in ‘Psychology’, as I studied Psychology as one of my two subsidiary subjects during the 1st year of my Law and Political Science degree as an undergraduate, and following examination that year, the ‘Psychology’ subsidiary formed part of my degree award, I do not think that  Commercial Mediators need to excel in a course about Psychology in order to master key Mediator skills. It helps, but it is not necessary.

An insight I have recently gained about Commercial Mediation is the benefit of explaining to each participant in a pre-Mediation Day Zoom call, that until you as the Mediator are permitted ‘enquire’ and ‘drill-down’ in confidential private sessions with each participant separately, about what they each want, need, prioritise and why, that it is impossible – except by accident rather than by ‘design’, for a Mediator to nudge the participants in the direction of a mutually satisfactory commercial outcome.

In a pre-Zoom Mediation Zoom call, a Mediator can also explain that in order to help each participant to think their objectives through, that he will be asking each participant on the Mediation Day, for permission to play ‘Devil’s Advocate’, by asking ‘reality-testing’ questions.

When a Mediator does this, he is not ‘taking sides’. He is trying to help each participant to think about and focus upon, how the other participant is likely to evaluate the ‘litigation risks’ if a settlement is not reached, and the dispute proceeds to trial.

This process enables each participant to calculate a ‘price for doing a deal’ that is commercially ‘enough’ for them, i.e. based upon ‘realistic wants, needs, and priorities’.

A knowledge of Psychology is valuable, and Part 1 of my next book – ‘Mediation of Art Music & Performer Disputes’ (see the Chapter structure on the ‘My next book’ page at www.carlislam.co.uk) is headed the – ‘Psychology of Conflict & Dispute Resolution.’

Linked to a knowledge of Psychology is an awareness of:

(i) Cognitive errors;
(ii) Body Language; and
(ii) Culture,

which I will discuss in the book.

See also my recent post: – ‘The 1st draft outline Chapter Structure for my next book – “Mediation of Art Music & Performer Disputes” has been posted on the “My next book” page at www.carlislam.co.uk (25.05.2025). https://lnkd.in/eF97dYzA

The Bibliography for my next book – ‘Mediation of Art Music & Performer Disputes’ has been posted on the ‘My next book’ page at www.carlislam.co.uk.’

My copies of:
·       Bandle, Anne Laure (2024) The Sale Of Misattributed Artworks And Antiques At Auction, Second Edition, Edward Elgar Publishing; and
·       Stamatoudi, Irini, Editor (2022) Research Handbook On Intellectual Property and Cultural Heritage, Edward Elgar Publishing,
arrived yesterday.

Nearly all of the other books and articles in the Bibliography have been assembled in my Law Library, and I read many of them for the first time while studying for the Diploma in Art Law at the Institute of Art & Law in London, which I was awarded in December 2023.

One insight I have recently gained about the Mediation of these niche, and multi-faceted commercial disputes, is that until they ‘enquire’ and ‘drill-down’, neither the Mediator nor the Mediation Advocates, can possibly know what the Artist, Musician or Performer actually wants, needs, prioritises, and why. Which is not always just money.

So until a conversation about this can start, it is impossible for a Mediator to nudge the participants in the direction of a mutually satisfactory commercial outcome.

The starting of this conversation – when they are ready, in their own time, space, pace and way, by each Participant with the Mediator, is when the proverbial ‘Sun’ starts to appear over the Horizon. This is the ‘Sunrise’ moment’ in a Commercial Mediation. It is when the clouds start to clear, and the bright rays of the Sun can break through and shine down upon the parties in dispute.

Therefore, in preparing for the Mediation Day, each Mediation Advocate needs to (i) have an ‘in-depth’ and ‘blunt’ discussion with their lay client about this, and (ii) prepare them to enter into a ‘realistic’ conversation about this with the Mediator.

That will also free up the Mediation Advocates to prepare for, and progress resolution, by on the Mediation Day, entering into a lawyer to lawyer dialogue without clients present, in order to explore the ‘contours of a commercial deal’ that is likely to be ‘sufficient’/’enough’ i.e. ‘commercially acceptable’ to their respective lay clients.

The Mediator can initially explore this in a ‘Pre-Mediation Day Zoom call’ with each Participant with their Legal Advisor(s) present, when explaining: (i) the ‘Mediation Process’; (ii) ‘Ground-Rules’ (which are set out in the Mediation Agreement); and (iii) enquiring about how they wish to ‘make the most of the time available’ on the ‘Mediation Day’.

Where what is at stake is ‘intellectual property’, these are highly technical commercial discussions, and will require ‘commercial imagination’ all round about what it is ‘possible’ to agree. So, ‘realistic preparation’ is key to success.

Where the parties are located in difference time zones, Zoom Mediation is a cost-effective mechanism for holding such conversations, which may be spread over several open and private sessions.

The Mediator, with the prior permission of each participant will also probe and play ‘Devil’s Advocate’ by asking ‘reality-testing questions’ i.e. about what is likely to happen in court based upon previous similar fact cases and judicial practice = ‘Litigation risks’ and costs. However if the Mediator goes too far, then in the eyes of a participant he may appear to have become ‘involved’ in the dispute as a ‘partisan’ observer. So, another benefit of thorough preparation, is the reduction of the risk of a participant walking out, because he/she thinks that the Mediator in not neutral and independent, i.e. that he in working for the other side.

While no theoretical distinction can be drawn between the performances of sportsmen and women, and those of other performers, under English Law, Performers’ Rights do not extend to sportsmen and women. This runs counter to the trend of protection in other jurisdictions.

‘The economic arguments for granting Performers’ Rights to sportsmen have become compelling, for example with the introduction of television channels devoted solely to sport. Similarly, with the moral argument for protection: a sportsman’s sporting prowess is as much an aspect of his personality as a musician’s artistry. There is no principal reason for saying that an opera singer should be accorded rights in his or her performance and not a football player. [However] as matters stand a sportsman’s commentary on another’s performance is protected, but not his own performance.’ (‘Performance Rights’, Sixth edition by Richard Arnold Sweet & Maxwell, 2021 para 1-124).

In Mediation, parties can agree to confer Performer Rights on Sportsmen and Women, which can be negotiated and agreed between them as a matter of contract, along with fair remuneration for the commercial exploitation of their performances.

Note also, that in England and Wales, ‘Image Rights’ (also known as ‘Personality Rights’ or ‘Publicity Rights’), which are an artist’s ‘proprietary rights’ in their ‘personality’, and is linked to ‘branding’ and ‘endorsement’, are not codified by statute.

Consequently, unauthorised use of a person’s name and image is litigated in this jurisdiction by claiming for:

(i) Breach of contract;
(ii) Infringement of a Trade Mark;
(iii) Passing off;
(iv) Defamation;
(v) Malicious falsehood;
(vi) Breach of confidence;
(vii) Breach of advertising rules; or
(viii) Breach of privacy.

These commercial disputes can all be resolved by Mediation.

Some members of 1EC Barristers specialise in Sports Law. I do not, and the focus of my next book is the ‘Mediation of Art Music & Performer Disputes’ – see my recent post about this – ‘We can work it out – Mediation of Art Music & Performer Disputes.’ https://lnkd.in/ei4tiQqc

Having said that, what I am pointing out in this post, is that some of the ‘Mediation Tools’ in ‘Art Music & Performer Disputes’, can also be used in the Commercial Mediation of Sportsmen Disputes.

I wonder how many legal practitioners and parties involved in Sportsmen Disputes are aware of this legal and commercial nexus?

Section 180(2) of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’) provides:

‘In this Part — “performance” means —

(a) a dramatic performance (which includes dance and mime),

(b) a musical performance,

(c) a reading or recitation of a literary work, or

(d) a performance of a variety act or any similar presentation,

which is, or so far as it is, a live performance given by one or more individuals; and “recording”, in relation to a performance, means a film or sound recording—

(a) made directly from the live performance,

(b) made from a broadcast of the performance, or

(c) made, directly or indirectly, from another recording of the performance.’

While in general ‘sporting performances’ are outside the ambit of this definition, arguably certain sports qualify by way of exception, including:

• Ballroom Dancing;
• Ice Dancing; and
• Figure Skating,

Because they are all forms of ‘dance’ within category (a).

The mere fact of competition should not alter this.

If ‘variety act’ is interpreted as referring to ‘circus performances’, then it may also be possible to include sports such as gymnastics within the ambit of the words ‘or any similar presentation’ i.e. because it is difficult to make a distinction between gymnastics and Circus high-wire or trapeze acts.

‘[There] is nothing in the 1988 Act to exclude performances which otherwise fall within the definition of ‘”performance” merely because they are sporting activities. (Arnold para 2-18).

‘Big kudos to Carl Islam for this brilliant and timely discussion about performers’ rights, and the possibilities for athletes to protect and negotiate value around their own signature expressions.

They’re choreographed celebrations to subtle expressions of victory, no doubt! But they’re not just gestures. They’re identity, storytelling, and branding. Carl’s insights illuminate how mediation can play a critical role, especially where legislation lags behind innovation.

As someone working in family systems and co-parenting mediation, I see this principle in action every day.

When we honor the performance – the gestures, tone, presence, and energy someone brings into the room – we get to the heart of what’s valuable and how to protect it.

This is the kind of ripple effect that resonates across disciplines (law, sports, negotiation, mediation), and across jurisdictions.’  (Jeff Soilson, California Mediator). https://www.linkedin.com/feed/update/urn:li:activity:7331338416187465729/

As I mentioned in an earlier post, my next live Zoom webinar to be presented to members of the Standing Conference of Mediation Advocates worldwide in 2025 is entitled – ‘Mediation Advocacy in Music & Performers’ Rights Disputes.’

This is provisionally scheduled for the afternoon of Thursday 20 November 2025.

I am also writing an article about this for submission to the Journal of Mediation Theory and Practice in October for publication worldwide.

The idea recently occurred to me that I should also write in depth about the ‘Commercial Mediation of Art Music & Performer Disputes’.

So, I have decided to change the working title of my next book to – ‘Mediation of Art Music & Performer Disputes.’

This will be written as a practical handbook for Commercial Mediators, Mediation Advocates, and their clients – globally, and I will post an update about this on the ‘My next book’ page at www.carlislam.co.uk, later on in the year.

I have recently discovered a legal intersection between:
(i) Intellectual Property Rights; and
(ii) Cultural Property Law,

and while the Art disputes that I plan to discuss in the book go beyond Cultural Property Repatriation claims to include e.g. Misattribution of Art and Antiquities sold at auction, i.e. in London and in regional auction houses, I am still planning to include a detailed discussion of Mediation and Mediation Advocacy in International Cultural Heritage Disputes.

As a common theme, IPR runs through Art Music and Performer Disputes – so I am hoping that the book will also have a wider appeal to all of those involved in Commercial Mediation – globally.

Not least, because it appears to me, that the creative use of IPR & knowhow as a ‘dispute settlement tool’ is underused and often overlooked by those involved in Commercial Mediation.

As I explained in my recent post about ‘Creative problem solving in Commercial Mediation using IPR & Knowhow?’ –

‘In Commercial Mediation, joint-creation/exploitation/ licensing & Assignment of ‘Intellectual Property Rights’ (‘IPR’) & ‘Knowhow’ – which are both also linked to ‘Tax-Efficiency’ & contractual ‘Deal-Structuring’ = potential common ground for agreeing terms of a mutually beneficial commercial deal in settlement of a dispute.’

As far as I am aware, this idea/’Mediation tool’, has not been explored and discussed in any depth in the leading books that have been published around the world about Commercial Mediation. So, there would appear to be a significant gap in the literature about ‘Commercial Mediation.’

There is also an intersection here with ‘Ethics in Negotiation’ – because as I explain in my article published online by the CMC: https://lnkd.in/e-6R–iv

‘Spiralling costs in litigation create a power imbalance between an artist and a record company.’

In the immortal word of the Beatles, in Commercial Mediation – ‘We can work it out!’ or rather – the parties, ‘with a little help from’ the Mediator and Mediation Advocates – ‘can work it out!’

Comments added:

‘Carl Islam’s article delves into the complex nature of music disputes and the high litigation risks involved. He outlines various claims, such as breaches of contract and trust, and issues like image rights and copyright infringement. Islam highlights the uncertainty of legal outcomes and advocates for mediation as a beneficial alternative to litigation, promoting collaboration and creative resolutions.’ (Civil Mediation Council introduction to my article published on their website, see: https://lnkd.in/e-6R–iv).

‘Big kudos to Carl Islam for continuing to break new ground with his upcoming book, “Mediation of Art Music & Performer Disputes.” This is essential reading, especially for those of us here in California and beyond who mediate in spaces where art, creativity, IP, and identity collide.

There’s something deeply resonant here for The Me in Mediation™ – the version of ourselves under an internal agreement to keep learning, to keep refining our craft, and to bring every tool available into the mediation room when we help others work through personalized problem-solving of complex relational dynamics.

Carl’s work reminds us that mediation doesn’t live in a vacuum. It intersects with power, culture, money, identity, and creative expression. Whether you’re based in London, LA, or Lagos, this belongs on your shelf.

And if you’re in the business of helping others resolve disputes, this might just help you resolve the ones within yourself too.’ (Jeff Soilson, Mediator in California): https://www.linkedin.com/feed/update/urn:li:activity:7330622058533445634/?commentUrn=urn%3Ali%3Acomment%3A(activity%3A7330622058533445634%2C7330627916218703872)&dashCommentUrn=urn%3Ali%3Afsd_comment%3A(7330627916218703872%2Curn%3Ali%3Aactivity%3A7330622058533445634)

In Commercial Mediation, joint-creation/exploitation/ licensing & Assignment of ‘Intellectual Property Rights’ (‘IPR’) & ‘Knowhow’ – which are both also linked to ‘Tax-Efficiency’ & contractual ‘Deal-Structuring’ = potential common ground for agreeing terms of a mutually beneficial commercial deal in settlement of a dispute.

There is also an intersection here with ‘Professional Conduct’ & ‘Ethics’, in both the ‘Facilitation’ & ‘Conduct’ of ‘Commercial Negotiations’ in Mediation.

In other words, IPR (while time-limited & jurisdictional) & Knowhow (which is protected under English Law by contractual confidentiality), are potentially creative ‘Deal-Making Tools’ for both Mediators & Mediation Advocates – provided: (i) you have been educated in the application of the underlying principles; (ii) are as we used to say when I worked in-house for Rolls Royce & Alstom – ‘Commercially Switched-On’/’Aware’; & (iii) have ‘Imagination!’

In my experience, very few lawyers that I have dealt with, fulfil all three requirements.

So, likewise, both Mediators and Mediation Advocates involved in Commercial Mediation need to have a working knowledge of the underlying legal principles.

Thus, while a Mediator need not be a legal polymath, they must be multi-disciplinary.

This is brought into sharp focus when you consider where and how IPR and Knowhow can be created and jointly-exploited in a Cultural Heritage dispute, see:

·       ‘Intellectual Property and Cultural Heritage: Towards Interdisciplinarity’ by Fiona Macmillan: https://lnkd.in/eUd9sd86.

·       ‘The notions of intellectual property and cultural heritage: Overlaps and clashes’ by Irini Stamatoudi: https://lnkd.in/eJ_sbmyC.

However, my impression is that neither Museum Trustees nor the legal advisors on either side of a Cultural Heritage Dispute, have much, if any idea, of how a ‘Creative Deal’ can be done by exploring the potential for IPR & Knowhow creation & exploitation.

This is a gap in the literature that I am aiming to fill, when in 2026, I start work on my next book – ‘Mediation of International Cultural Heritage Disputes – Anachronism, Orientalism, Culture, Ethics, Law, IPR & Contracts.’ – See the ‘International Cultural Heritage Disputes’ page at www.carlislam.co.uk.

Meanwhile, my next live Zoom webinar to be presented to members of the Standing Conference of Mediation Advocates worldwide in 2025 is entitled – ‘Mediation Advocacy in Music & Performers’ Rights Disputes.’

This is scheduled for the afternoon of Thursday 20 November 2025.

Both the Talk & the Article, will discuss the potential use of IPR & Knowhow as a Tool of ‘Creative Deal-Making’ in Commercial Mediation.