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.