Taking advantage of ADR in the entertainment industry

Jeffrey Grubman, Esq. is a JAMS neutral based in Miami who has served as a mediator in 22 states, the District of Columbia and Puerto Rico in a wide variety of complex cases, including class actions and high impact, multi-party matters. He can be reached at jgrubman@jamsadr.com.

As courts throughout the U.S. have become more and more backlogged with cases, and as the financial stakes in litigation have grown increasingly larger, so too has the need for quality ADR mechanisms. Certain substantive legal areas lend themselves particularly well to ADR, which include Intellectual Property/Enter­tainment matters.

The importance of secrecy and pri­vacy, the need for expertise and the flexibility that ADR offers are three reasons why IP and entertainment practitioners should use ADR as much as pos­sible. Every time a lawsuit is filed, it becomes public record. Reporters scour the case filings for interesting cases to report. Parties can avoid this unwanted publicity by agreeing to participate in a pre-filing mediation. If successful, the case is never filed, the facts remain confidential and the parties reach a business-like resolution while saving substantial attorneys’ fees. Because many parties often have ongoing relationships to preserve, an early resolution is also likely to maintain that important relationship.

In addition to using pre-suit mediation, entertainment and IP cases make great candidates for binding arbitration. If the parties have not previously entered into a contract with an arbitration clause, the parties can still agree to binding arbitration before suit is filed. Among many other advantages, arbitration is private. Therefore, even if an early mediated settlement can’t preserve the parties’ business relationship, the matter may be kept private through arbi­tration instead of the courts.

IP and entertainment matters often involve complex legal issues and technical industry concepts, which may be difficult for a jury to understand. By using arbitration and mediation, the parties can select ADR professionals with substan­tial experience in entertainment and IP matters. By selecting neutrals with unique, practice area-specific experience, the parties can save time by not having to educate judges and jurors with little to no knowledge of the industry and the law.

Regardless of the outcome in any case, at least the parties have the peace of mind of knowing that their decision maker was informed and up to speed on the issues.