The tide of ADR is rising in many places -- it is a viable mechanism in television format disputes?
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 law doesn't work…It makes it worse
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...