What happens when a professional creative relationship breaks down and leads to dispute? Whether there’s disagreement about royalties or rights control with your publisher, or issues in your relationship with your agent, or conflict over ownership with a creative partner, your goal is the same – to sort things out.
That’s imposible without a process – a set of rules to guide your approach, encourage all parties to focus, help temper emotional involvement, and reach an agreement.
Top commercial mediator Andrew Hildebrand shares his ten-step approach, based on his long track record in resolving disputes across the creative industries.
1. Make resolution your priority
Don't let emotion get the better of you. It is not about winning or losing. Take a step back. What were you hoping to achieve at the outset? Put the dispute in perspective and focus on the future. What are your 'must haves', 'wish lists' and 'no-nos’? Prioritise what is most important to you. Now, put yourself in their shoes. Do the same for them.
Think about a) how you are going to get what you want, and b) what you may need to do, to get them to give you what you want. Rehearse what you are going to say. Rehearse it until you can say it calmly, succinctly and persuasively.
Think about what tone to adopt. Role play the conversations. Remember, it is not what you say, but what they hear that matters. Think about what questions to ask. Especially questions designed to flush out whatever fears you think they may have about settling with you. Fears – even neurotic ones – can get in the way of a deal, so be prepared to name and eliminate them.
3. Seek expert help to have those difficult conversations
A neutral third party or mediator can clear the air, stop discussions descending into the usual arguments, knock heads together and get people focused on settling. So much so, that 75% of mediations settle on the day.
In what I would call ‘relationship disputes’, there are often several layers of issues. Typically, the issues that surface first are simply the easiest ones to express in legal terms, but the underlying issues, like past altercations, or unresolved misunderstandings, are invariably the most important ones to resolve, particularly if they are threatening the relationship.
Mediating enables you to sort out the legal and commercial issues, but also to go further and address those fundamental issues and unblock the impasse.
4. Meet face to face (or via video call)
Face to face is the ideal – you will get a clearer sense of what it is going to take to resolve matters and what the real issues are. Not just from what they say (only 7% of communication comes from the actual words) but from their tone and body language. But if that’s not possible, a video call may be the next best thing.
There's more than one version of the truth. You don't have to agree with what someone says but empathising can make a real difference. Get them to articulate what’s on their mind. Make sure you understand their position before you start explaining yours – or you will be wasting your time. Demonstrate your attention with body language, eye contact and stillness.
Listen for where their negatives are. Especially, their fear of loss. That will usually be a big driver.
If they suggest something that works for you, say ‘That is brilliant. Let’s do that’. If it is their idea, they will be much likelier to stick to it and implement it.
6. Fight the problem, not the person
Say what you need to say and keep it brief. Don’t waste time hammering a point home.
Simple language creates an aura of authority. So, sound authoritative. Slow down. The calmer you are, the more confident and trustworthy you’ll seem. The more they will focus on what you are saying. Explain things in terms of examples and analogies. You want them to think ‘Aha, I get it. That makes sense’.
Accentuate the positive. Explain what you have in common. Identify joint obstacles that need to be overcome. Before making a major intervention, label it and give your counterparty time to think about it. Like ‘May I suggest a compromise?’ or ‘Do you mind if I ask you a rather direct question’. Much better than just doing so.
Offers need to be in the right ball-park. Preferably backed up by comparables, and a message to show you have given it serious thought. Don’t back-track on an offer. It doesn’t work, and it erodes trust.
Generate and evaluate options. Make sure everyone understands what they have to lose – and not just financially.
7. Press for decisions
Discuss the various options openly. You want ‘buy in’, so let people participate, including anyone who you worry may object.
Be willing to walk away if you have to. If an opponent fears losing a good result, they’ll be more disposed to making concessions – and if it isn’t meant to be, it isn’t meant to be.
8. Bite your tongue
Keep an open mind. Try to give others the benefit of the doubt. It may seem trivial but at the heart of the conflict, there may be an underlying human need, like the need to feel respected or valued. So no eye-ball rolling. Instead of taking something personally or responding immediately, take a minute to process your feelings about the situation. Keep calm and explain your position clearly.
There’s often a critical point where if negotiations don’t conclude, they collapse.
It is best not to discover that in hindsight.
9. Sign it
Once terms have been agreed, draft a short agreement. Get it signed before you leave. Or things could unspool. Aside from the added cost, stress and management time likely to be involved dealing with fall-out, if a perceived ‘agreement’ is ruptured, that can exacerbate feelings of mistrust or frustration (it is like calling off an engagement) and the consequences can be damaging.
10. Learn from your mistakes
Knowing how to manage a dispute can be invaluable, but the real wisdom is in the ability to spot a conflict, defuse it and head it off. As Peter Cook said: "I have learned from my mistakes, and I am sure I can repeat them exactly."
© 2020 Andrew Hildebrand
Andrew Hildebrand specialises in working with creative talent. He regularly mediates cases involving writers, authors, publishers, agents, producers, broadcasters and distributors and has a knack for managing hostile parties and getting disputes settled quickly, including the Pact/Bectu Terms of Trade for studio blockbuster films. Before becoming a mediator, Andrew ran business affairs for Channel 4 and FilmFour and was a partner at law firm, Mishcon de Reya. He has recently been appointed to the Foskett Panel to reassess compensation for HBOS fraud victims.