Mediation vs. Arbitration/Litigation:

Mediation has been a considerably overlooked process in the Entertainment field and certain other industries, largely because many observers equate Mediation as being the same process as Arbitration. Yet, the two processes are actually vastly different.

Arbitration is a quasi-judicial process where the parties hire a "rent-a-judge" to resolve their case and the "rent-a-judge", as in a Court setting, can impose "its will" in its sole discretion, with no right of appeal on the merits! In Arbitration (or Court) proceedings, the parties have no control over the outcome, which can be, as the term implies, quite "arbitrary", unpredictable and often devastating to one or both of the parties.

In Mediation, on the other hand, the parties have complete control over the entire process and the outcome is only one that the parties, with the help of a mediator, devise and accept themselves, since the only time a determination occurs is through a mutually reached and approved Agreement, executed by both sides! As you can see, the differences between Arbitration and Mediation are dramatically different!

But, unfortunately, while Mediation has been proven to be a very effective process in many industries, in the entertainment business, Mediation has often been handled in a rather disorganized manner, often with "hit & miss", unskilled and non-specialized sole-practitioner mediators. Most independent mediators have little or no formal mediation training or experience, and offer their services through random newspapers ads and unsolicited letters. Yet, until EMI, these individuals, often-unskilled Mediators, have provided virtually the only resource available to the Entertainment Industry. This situation has grown to be a real barrier to serious parties having confidence in initiating Mediation, even when it was clearly called for in a dispute and the best, most efficient route for the parties to undertake.

The other, equally unacceptable alternative has been to hire an AAA or JAMS former Judge to decide the matter, which with the typical "judgmental approach" from years of Court training, only achieves an imposed result based on the Judge's arbitrary attitude, demeanor and personal penchants, as opposed to a mediated mutual resolution created by the parties.

Because of these misconceptions, the proven effectiveness of the Mediation process (vs. judicial determination or arbitration) has been largely misunderstood by many attorneys, general counsels and litigants, and has, therefore, been greatly underutilized by many in the Entertainment and other Industries who could most utilize its benefits, long before considering the far more costly and protracted alternative of litigation or arbitration as a solution.