REMEDIES - WHO’S RIGHT, WHO’S WRONG, WHEN LOVE IS GONE?
The line comes from a song sung by Randy Crawford and Al Jareau at the Montrose Jazz Festival some years ago. A fitting description for a breakdown in a relationship in the film and television industry in a small country such as New Zealand. No matter how “right” your cause may be, the exigencies of a small country, limited opportunities, long memories and expense of litigation may see your “right” cause become “wrong” in the long term, both in terms of cost and in terms of one’s ongoing career.
When a dispute arises between two entities the legal remedies are mediation, arbitration or litigation. If the monetary amount involved is less than $15,000 (or $20,000 by agreement with the other party) one can seek redress in the Disputes Tribunal. The benefit of this forum is that lawyers cannot appear and it prides itself on being “quick, inexpensive, informal and private”. The downside is that, although it deals with contractual breaches or arrangements, it currently doesn’t deal with intellectual property issues such as copyright – so if the issue at hand is a claim for breach of copyright, this forum isn’t available.
Mediation and arbitration are both settlement techniques referred to as forms of “alternative dispute resolution”. With mediation a third party – mediator – assists the parties to negotiate a settlement within a structure, timetable and dynamic that general negotiation lacks. The mediator acts as a neutral, but informed third party, who facilitates a settlement between the parties in dispute. A Mediator cannot bind the parties to a particular agreement. That is done subsequent to the mediation, if agreement is reached, by way of a Deed of Settlement entered into by the parties. The benefits of mediation are that it generally takes considerably less time than litigation through the Courts, is more cost effective, is confidential and, where successful, ensures both parties will adhere to the agreed outcome as a mediated agreement is enforceable through the Courts.
Arbitration is where the parties to a dispute refer it to one or more persons – the arbitrator – by whose decision they agree to be bound. It is a resolution technique where a neutral third party reviews the evidence of each party and imposes a decision that is legally binding and enforceable. Arbitration can be helpful in that an arbitrator can be chosen who has a specialised knowledge in the industry in which the dispute arose (unlike a judge in Court), it’s generally faster, more cost effective and flexible, and can be made confidential.
Whilst both mediation and arbitration are less expensive than litigation through the Courts, each party is still required to meet the costs of the mediator / arbitrator.
Realistically speaking, despite the sabre-rattling of “cease and desist” or other threatening legal letters, litigation through the Courts is too prohibitive. Unless the damages flowing or money involved in a particular dispute is in excess of a six figure amount, the cost of this type of remedy can’t be justified.
So the bottom line is, in any contract you enter into, make sure that it contains a provision for dispute resolution – preferably mediation in the first instance, and then arbitration, before either party can resort to litigation through the Courts. But before resorting to such a clause, if it’s possible, make an effort to resolve matters amicably. New Zealand’s film and television industry is small – when “the love is gone”, the scent of an ugly dispute can linger on for years.
Karen Soich law [email protected] 376 5739 / 021 43 55 11
The line comes from a song sung by Randy Crawford and Al Jareau at the Montrose Jazz Festival some years ago. A fitting description for a breakdown in a relationship in the film and television industry in a small country such as New Zealand. No matter how “right” your cause may be, the exigencies of a small country, limited opportunities, long memories and expense of litigation may see your “right” cause become “wrong” in the long term, both in terms of cost and in terms of one’s ongoing career.
When a dispute arises between two entities the legal remedies are mediation, arbitration or litigation. If the monetary amount involved is less than $15,000 (or $20,000 by agreement with the other party) one can seek redress in the Disputes Tribunal. The benefit of this forum is that lawyers cannot appear and it prides itself on being “quick, inexpensive, informal and private”. The downside is that, although it deals with contractual breaches or arrangements, it currently doesn’t deal with intellectual property issues such as copyright – so if the issue at hand is a claim for breach of copyright, this forum isn’t available.
Mediation and arbitration are both settlement techniques referred to as forms of “alternative dispute resolution”. With mediation a third party – mediator – assists the parties to negotiate a settlement within a structure, timetable and dynamic that general negotiation lacks. The mediator acts as a neutral, but informed third party, who facilitates a settlement between the parties in dispute. A Mediator cannot bind the parties to a particular agreement. That is done subsequent to the mediation, if agreement is reached, by way of a Deed of Settlement entered into by the parties. The benefits of mediation are that it generally takes considerably less time than litigation through the Courts, is more cost effective, is confidential and, where successful, ensures both parties will adhere to the agreed outcome as a mediated agreement is enforceable through the Courts.
Arbitration is where the parties to a dispute refer it to one or more persons – the arbitrator – by whose decision they agree to be bound. It is a resolution technique where a neutral third party reviews the evidence of each party and imposes a decision that is legally binding and enforceable. Arbitration can be helpful in that an arbitrator can be chosen who has a specialised knowledge in the industry in which the dispute arose (unlike a judge in Court), it’s generally faster, more cost effective and flexible, and can be made confidential.
Whilst both mediation and arbitration are less expensive than litigation through the Courts, each party is still required to meet the costs of the mediator / arbitrator.
Realistically speaking, despite the sabre-rattling of “cease and desist” or other threatening legal letters, litigation through the Courts is too prohibitive. Unless the damages flowing or money involved in a particular dispute is in excess of a six figure amount, the cost of this type of remedy can’t be justified.
So the bottom line is, in any contract you enter into, make sure that it contains a provision for dispute resolution – preferably mediation in the first instance, and then arbitration, before either party can resort to litigation through the Courts. But before resorting to such a clause, if it’s possible, make an effort to resolve matters amicably. New Zealand’s film and television industry is small – when “the love is gone”, the scent of an ugly dispute can linger on for years.
Karen Soich law [email protected] 376 5739 / 021 43 55 11