Media and Mediation: More Than a Phonetic Match?

I must declare at the outset that I come to this from a Paulian perspective. In the early Nineties, as a libel defence lawyer, I was very much against mediation. I thought it was soft and pointless and had no place in the kind of disputes I was defending.

It was representing two clients in format disputes more recently that made me readdress the process. Finding FRAPA (Format Recognition and Protection Association) on the Internet led me to look further, and, lo and behold, I have now trained as a mediator with CEDR (Centre for Effective Dispute Resolution).

Wrenching myself free from this jungle of acronyms, I was prompted to write this article as I followed the developing dispute concerning the formats in the television programmes "Survivor" and "Get Me Out of Here, I’m a Celebrity" That litigation continues, but I use it merely as an example of the kind of dispute which surfaces from time to time within the industry. As all insiders know, the level of dealing in formats -- and disputes that do not attract such publicity -- is a significant component in the programme economy.

A second prompt was an article thrown up by a database search, dating from March 2000, being a "lawyer's defence" and a broadly based attack on mediation. It essentially said that everything a mediator can do should be covered by what lawyers representing the parties will do in any event. It raised several ethical objections to the role of the mediator and effectively dismissed it as a useful method of resolving a problem. Very much something I could have written ten years ago.

The reality of litigating format disputes is that you appeal to a complex Venn diagram of legal remedies that can, depending on facts, be of use to the "owner" of a format. Reviewing any of the articles on this topic shows the same agenda. Breach of confidence. Passing off. Trade Marks in logos, titles and catchphrases. And, of course, copyright law if you can show you have a literary work. All in all, a strong case of the Emperor’s Clothes.

Looking back, the Department of Trade review in 1994 yielded very little new on the subject –the same is true of legal databases and even indices searches of copyright related works and archives.

One of the arguments arising from the cases which are pursued is that whatever the result, it can look like bad law for someone. If the party-asserting format rights wins then they may have a monopoly -- or perceived monopoly -- over relatively abstract ideas. Taking the extreme, it could inhibit creative activity and be seen as a restriction on free speech: perhaps a Human Rights issue in some circumstances. This is the argument (together with a difficulty of defining a format right) that stalled attempts to extend copyright law. Given the inequality of bargaining power, powerful rights owners may secure monopolies to the detriment of small and independent producers. It is those smaller producers who are most frequently clients complaining that their ideas have been "stolen".

To deny any rights at all can be claimed -- which is close to what the American judge in the first interlocutory decision in the Survivor/Celebrity case said -- dilutes the future value of a programme once it is transmitted. There has to be some compromise. As with basic copyright law, what is needed is some acknowledgement that the fruits of someone's labour should be something they can exploit and which cannot be taken away readily. It is a familiar dilemma where competing interests need to be adjudicated, but in an area where the law has shown to be lacking.

So, if formats are a legal nonsubject, how would more awareness of the use of mediation help?

An obvious one is the need for continued relationships. There is good evidence that mediation works well in industries where the parties really don't want to fight to the death. It is the essence of most mediations that the parties get their virtual Day in Court and vent their emotions. They often mend fences and leave as friends, on a commercial level. They look to the future and to what they want to achieve, rather than continuing to concern themselves over rights and what they did in meetings three years ago.

In format disputes, as much or more than elsewhere, delays are extremely damaging. Programming goes through fashions and ideas have a shelf life. Whatever happens in litigation, its existence will be a setback to both parties in pursuing the use of a particular "idea". A quick resolution is to everyone's advantage.

Costs are always an issue -- and increasingly in format cases expensive marketing, investigative and expert evidence is going to be needed. If you add an international dimension and have to litigate in more than one jurisdiction, you add a multiplier to this part of the equation. If that can be avoided, why would anybody not want to explore that option?

So, if the case is so persuasive, why the hesitation?

FRAPA is one organisation working within the industry to try to provide a framework for drawing that line between an unfair monopoly and a denial of legitimate intellectual property. It operates a registration system and offers a mediation service. But will it work? This depends in part upon how many people in broadcasting want to join the club. It remains to be seen whether those left outside of the club may unbalance the format applecart.

Even then, it will take time to see if it’s role as a mediator will work to the satisfaction of all parties. From speaking informally to some of those involved, it seems to date to have enjoyed a high success rate. Supporters of mediation will say this reflects the general pattern where this type of ADR is employed.

There is, perhaps, for the unbelievers, an argument that the existence of a registry could go some way to creating de facto "bad law" which could allow certain rights owners to dominate. As with trademarks or patents, the scope and definition of formats will still be challengeable where one party is looking to the registry as proof of their pre-existing idea and therefore control of it. There is much to be worked out in the evolution of the idea as an industry watchdog. But that is an argument about the advantage or disadvantage of a contractual system of registration. As one mechanism for promoting ADR to resolve existing disputes, it must have some potential.

Those who have represented broadcasters will be familiar with the feeling that having programmes called into question before any of the regulators, despite their avowal that they are an alternative to litigation, sometimes proves to be a "dry run" for a claimant. Some may feel the same is true of mediation.

If any party feels judicial adjudication is ultimately the only solution, voluntary mediation would be an intermediary stage and in my view in most cases nothing would be lost. It is a category of case where disclosure in the early stages of the dispute is often the best tactic in any event.

As a defence lawyer in cases brought on plagiarism/breach of confidence, setting out the defence early is nearly always advisable. Disclosure is needed to establish, for example, that there was no conduit of information whereby the claimant’s idea or format could have reached the defendant's production Department. At the same time, a defendant will want to put into play their evidence of independent creation and development. Mediation will do nothing to force unwitting disclosure here.

Where an idea or format is already in the public domain you are dealing in passing off/moral rights/copyright. In these cases evidence -- such as market or expert -- has to be gathered and it may be felt that an early mediation is not a good idea. It is necessary to balance the uncertainty which a lack of that evidence promotes against the time and expense which the litigation route dictates.

What I set out to do is draw attention to a topical problem in the media world and question whether going to court should always be the first choice of a disgruntled format creator. I have not reviewed the relatively few number of authorities that are cited in this regard – because, as I have indicated, they are decisions on established causes of action that merely illustrate the absence of a proper legal framework for formats. I write as a lawyer and a mediator. There is a case against mediation and considering it is, to use a phrase favoured by mediators, a reality check which should not be ignored. Some of the ethical difficulties (such as conflict of interest or undue influence (where parties are cocooned until the early hours of the morning in an overwhelming expectation of settlement) should not be dismissed lightly. Nevertheless, I conclude that this is one of the areas where the use of mediation has not reached its optimum level and although it can never be a panacea, there are strong reasons why it can be a useful option.