|Designers don't get into serious legal disputes very often. Positive relationships are very important in the design business and we work very hard to maintain them. Occasionally, we might have a temporary disagreement with a client or a vendor over job specifications or payment terms, but we're usually able to sort things out. Direct negotiations and personal diplomacy nearly always prevent such situations from escalating.
Sometimes, however, direct diplomacy does not work. If you find yourself facing a serious problem, there are three types of dispute resolution that are commonly used in the U.S. Here's a brief description of each one:
Mediation is a non-binding intervention between parties in an informal setting in order to promote resolution of a dispute. It involves the active participation of a third party (a mediator) who facilitates discussion in order to clarify issues, find points of agreement and encourage cooperation. A commitment to mediation is often included in contracts. There are professional mediators and lawyers who offer mediation services.
The next step beyond mediation is arbitration, in which an impartial third party (an arbitrator) hears both sides of the dispute in an out-of- court setting. The arbitrator is an attorney who acts much like a judge, listening to both sides of the story but not actively participating in discussion. You and your opponent will have the opportunity to present evidence and witnesses. After hearing the facts, the arbitrator will make a decision. In your contract, you will specify whether the decision of the arbitrator is binding or non-binding. Binding arbitration imposes a legal obligation on the parties to abide by the decision and accept it as final. Arbitration proceedings are held in an attempt to avoid a court trial. However, contract-required arbitration may later be converted into a legal judgment on petition to the court. The fees involved might be large (depending on the dispute, they could easily range from $3,000 to $20,000 or more), but usually they are less than those involved in pursuing a lawsuit. For the sake of convenience, many contracts identify a large, national arbitration service to be used in the event of a dispute. However, it may be preferable for you to replace this national name with a local name, particularly if you can find a service that is geared toward the arts.
Litigation means that you are pursuing a lawsuit through the court system in order to resolve a dispute. The time and expense involved may be considerable.
Getting good advice
For assistance with dispute resolution and referrals to legal advisors, it's smart to seek out organizations that specialize in helping artists and designers. A good place to start is:
Volunteer Lawyers for the Arts
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Shel Perkins is a designer, educator and consultant to creative firms. His book 'Talent Is Not Enough: Business Secrets For Designers' will be published in 2005 by New Riders. To contact Shel with questions and comments, please e-mail us at firstname.lastname@example.org