Amy A. Lehman, Director of Legal Services at the Volunteer Lawyers for the Arts in New York, advises Joan Mitchell Foundation grant recipients as part of our ongoing Professional Development series. We asked Amy to share insights into legal tools that can help artists manage their practices and relationships. Her topic of choice? Mediation.
There are many ways to protect your work as an artist: keep an up-to-date inventory of your work; have complete estate planning documents drafted; always use a contract when working with others; register your copyrights; do your best not to infringe on other artists’ work. All of these are important tools that you should be using throughout your artistic life; see the Resources section below for some links to get you started.
But what do you do when a gallery has refused to return your work or pay you after it sells? Call a lawyer? Sue?? Well, maybe not. Litigation is a rough and tumble method of solving problems that just isn’t a practical solution for most people. Besides being expensive and likely not worth the cost in time and money, why would you want to allow a judge to make decisions for you when the outcome will be uncertain? To say nothing of the fact that judges aren’t famous for understanding the subtleties of art and its value to you. Maybe there’s more to it than just the dollar value.
Or, let’s say you are collaborating with someone and you just can’t agree on some detail of the process. Or it’s not working out for other reasons—but you love the project and don’t want to abandon it. Mediation is a tool that allows for creative solutions to problems, so it works especially well for creative people.
So, what is mediation?
Mediation is a process where parties who want to negotiate a resolution to a dispute, come to terms of a contract, or smooth over a difficult working situation can resolve their differences with the assistance of neutral mediators. Mediators are not judges. Instead they are neutral facilitators who neither represent the parties nor impose an outcome on them. They just assist with the communication process between the parties by listening and helping to interpret when two or more people can’t seem to hear each other. It can be therapeutic as well as practical and oftentimes allows the parties to move forward and continue their working relationship in a way that had been blocked beforehand.
One of the most interesting advantages of mediation is that the parties can find a way to craft a solution that works for them. It might not be obvious, but it could be a way to create value where there was none before. Let’s say you have been working with a gallery for many years and you value that relationship, but they haven’t been doing much to sell your work lately. You decide to cancel your contract and ask for your work back but they seem to have misplaced a few pieces, or return one with damage. Obviously, there is money at stake, but what about trust?
In a mediation setting you would have the opportunity to express your feelings about how they have mistreated your work, and perhaps they could explain what happened. Maybe the owner was sick and wasn’t able to supervise their staff. Or maybe the gallery had changed vendors and didn’t realize that they were not handling the work carefully. Or maybe you are really more upset about the fact that the work hasn’t been selling. How can that be addressed by communicating better about that problem?
To initiate a mediation, the first step is to research mediation services available in your community. (See the Resources section below for some services.) Once you select a mediator, they will do an intake (via phone or through a form) to gather the details of your matter and contact information. The mediator will then reach out to the other party (or parties) and request their participation. If they agree to participate, a mediation session will be scheduled at the parties’ convenience. The mediator will lead the session as a neutral facilitator to attempt to resolve the dispute. Follow up sessions can be scheduled as needed.
Whatever the underlying problem turns out to be, mediation can assist you with creating an outcome that is better for both of you, and hopefully will keep the door open to working together again in the future.
About the Author
Amy A. Lehman, Esq. is Director of Legal Services at the Volunteer Lawyers for the Arts in New York.