In 1979, a small committee of thoughtful board members of Bay Area Lawyers for the Arts (now California Lawyers for the Arts or “CLA”) conceived of an alternative dispute resolution program for the arts community. They recognized that litigation — as a problem-solving tool — does not serve artists well because of the time and expense involved. And, once a lawsuit is filed, the resulting damage to relationships and reputations can be irreparable.
Since its founding in 1974, the nonprofit organization has led advocacy efforts for artists’ rights, provided legal consultations through referrals to expert attorneys and presented educational programs highlighting the specific issues of different artistic disciplines and the legal issues artists often face. Alternative dispute resolution, based on community mediation practices, would become a distinct service with many creative applications. The program received initial funding in 1980 as a national model from the National Endowment for the Arts (NEA) and the Ford Foundation. Soon after, I was hired as the first program director for the new program, which we named Arts Arbitration and Mediation Services (AAMS). Within six months, we contracted with the American Arbitration Association to provide our first mediation training program.
During the decades since, we have adapted the basic tools of mediation to engage in creative problem-solving efforts of many dimensions and in diverse contexts: from contract disputes involving two individuals who are collaborating on a project, to disagreements within non-profit arts organizations, to large-scale public policy task forces wrestling with government funding allocations and inter-sector advocacy initiatives.
Collaborating artists sometimes find themselves in disputes that involve artistic control (who decides how the play will end?), partnership dissolutions (who will get the mailbox key?), and intellectual property (who owns the copyright and the business name?), among others. Disputes over money often emerge as new conditions arise. For example, an original “50/50” split, which may have been concluded with a handshake between friends or based on their past practice, may not seem fair to everyone if the division of labor, costs, or other financial aspects have changed over time.
Cultural clashes often fuel tension and distrust that can be manifested with suspicion or overt hostility. These issues can surface through differences in language, gender, and ethnicity, as well as distinct religious practices, behavioral norms, and generational divides. Cross-cultural differences can be difficult to reconcile in the absence of attentive, confidential third-party intervention. Neutral mediators can provide an opportunity for the presented issues to be reviewed in light of these differences while defusing blame and defensiveness. The essential elements of mediation, which include active listening, setting the agenda with the collaborative participation of everyone at the table, fostering good faith negotiations, brainstorming, and testing possible points of agreement, can be usefully applied in many of these multi-layered situations in order to improve communications between the participants. At the conclusion of successful mediations, the disputants often agree on mutually beneficial solutions that may include action steps that move the participants forward towards better relationships. Sometimes, there are apologies, handshakes, or hugs.
In one particularly contentious case that involved cultural tensions, city police in Sacramento had issued a series of citations to several youths for defacing a Latino neighborhood center with graffiti on a wall that faced a courtyard. The situation became so heated that the center’s director reached out for support from the mayor’s staff, who requested our mediation services. Our associate director quickly set up a session that involved two police captains and representatives of the center, including a respected elder in the Latino community and the art teacher. During a two-hour discussion, the mediator engaged the parties in reframing and other active listening techniques. The police officers learned that the leaders of the center had designated their wall as a safe space for the youth to paint. Based on their cultural norms, the police had not considered that what they perceived as graffiti could be an acceptable art practice and a way to keep the center’s youth close by while they engaged in an expressive art activity. After signing a written agreement stating that the citations would be withdrawn, the police and the center’s leaders exchanged hugs.
Mediators are trained to be aware of their own personal biases and to withhold judgments about the character of the participants in order to support all of them as third-party neutrals with even-handed attention. Our mediation staff recently presented a 25-hour mediation training program for an ethnically specific youth organization in Los Angeles County. During the training program, the participants were asked to: “Reflect on your own social identities, biases, and privileges. Consider how your background and experiences might influence your perceptions and interactions with individuals who have different intersecting identities.” Our training manual defines unconscious bias as the automatic judgments and attitudes we hold towards certain groups of people, while intersectionality acknowledges the overlapping and interconnected nature of various social identities and how they can shape our perspectives and experiences.
AAMS strives to train a panel of diverse mediators to ensure that it represents, to the extent possible, a variety of ethnic and cultural backgrounds. Using a co-mediation model, it tries to pair people who represent diverse cultures as well as different skill sets, to lead the mediation sessions. It can be useful to place a mediator with an artistic background that matches the art discipline of the artists with an attorney mediator who has expertise in the presented legal issues. By working as a team, their skills complement and strengthen each other for the benefit of the parties. In a recent case, for example, documentary filmmakers in a dispute with their production company were assisted by one mediator who had a background in entertainment law (specifically the film industry) and another who was a filmmaker.
Mediators who have completed their basic skills training elsewhere are encouraged to join the AAMS volunteer panel. To qualify, they must attend an eight-hour orientation. In this training, which is offered annually, AAMS describes the unique challenges of mediating arts-related disputes and working with artists and others in the creative community. These mediators are also introduced to the advantages of co-mediation through participation in roleplays that are based on typical situations that are brought to our program. If the disputants have conflicts that concern racial, gender, or other types of bias, AAMS tries -- to the extent possible – to match the team of co-mediators with the different personal characteristics of the people having the conflict.
For example, as an African-American woman, I co-mediated a case during the COVID-19 pandemic with one of our program directors who is a White man. The situation involved residents at an art studio complex who had conflicts about how the center’s COVID-19 protocols were being implemented and enforced. A transgender artist who is African-American had complained to the center’s director, who is White, that an older White couple who were residents in the building were not following the rules that the center had mandated during the pandemic. The artist complained that the center’s staff showed more deference to the couple and dismissed their complaints because of the couple’s race and perceived privilege. While the presenting issues concerned how the residents at the center were allowing visitors into the space and compliance with the requirement to wear masks in the common spaces, the emotional issues that involved the age, race, and gender of the participants quickly became paramount and eliminated direct communications between the parties.
Over the course of seven months, we held three mediation sessions over Zoom with the residents and the director of the center. Because the White couple refused to negotiate directly with the artist who was complaining about their behavior, two mediation sessions with the center director and the couple were set to hear their concerns. They felt that they had worked with homeless people for many years and had impeccable credentials based on their experience dealing with people of color. A separate session took place between the center’s director and the single artist. Points of agreement included how changes in COVID protocols would be communicated by the center’s staff to all of the residents. The director agreed to hold trainings in cultural equity and inclusion for the center’s artists, staff, and board members. She also agreed to arrange for a restorative justice process for the artists’ community that would be led by an experienced consultant.
Mediators volunteering with AAMS receive training in intersectional competency, trauma-informed communication, and the specific needs of individuals from BIPOC, low-income, and disabled communities, along with other underserved and marginalized groups. This training ensures that volunteer mediators and AAMS staff provide appropriate services with the knowledge and understanding necessary to build trust with individuals who may have experienced historical barriers to accessing legal and dispute resolution services.
To accommodate individuals with transportation and/or mobility challenges, which disproportionately affect low-income and disabled people, AAMS offers both in-person and remote mediation services. Virtual mediations are conducted using a secure, user-friendly video conferencing platform, which allows parties to participate from the safety and comfort of their chosen spaces. For individuals who require assistance with technology, our staff provides comprehensive support, including step-by-step instructions and technical help before and during the mediation sessions.
Access for limited English proficiency individuals remains a priority, with mediation services available in multiple languages and accommodations for interpreters when needed. This approach ensures accessibility and allows individuals from diverse backgrounds to participate meaningfully in the mediation process. One disabled person who participated in mediation wrote these comments about her experience: “It allowed me to disengage from this difficult situation and focus on my nonprofit work. As a result, some truly remarkable things have transpired. If I had to handle this situation on my own, it could have potentially exacerbated my disability to the point of requiring hospitalization. However, with your assistance, the opposite happened. I was able to assemble not only a team of incredible artists to showcase but also a team working behind the scenes.”
Over the years, our AAMS services, which also include arbitration, have been sustained with grants that we have been awarded in several counties in California from funds made available through the Dispute Resolution Programs Act (DRPA). Counties that choose to offer alternative dispute resolution services to their residents are authorized to allocate up to $8 per court filing fee to generate revenues for the programs. DRPA was passed by the state legislature in 1986 and is supervised by the California Department of Consumer Affairs.
After establishing AAMS in several counties in California, we received grants from the NEA and the Hewlett Foundation to replicate the mediation service with art/law organizations around the country. Starting in 1991, we led trainings for staff and volunteer mediators in Houston, New York, Denver, Chicago, Seattle, St. Louis, and Washington, DC. Many of the attorneys we have trained, alongside artists and other professionals, find that, in addition to meaningful volunteer opportunities, they can usefully incorporate mediation skills in their legal work as they negotiate contracts and settlement agreements for their clients. Several decades later, Volunteer Lawyers for the Arts in New York still maintains their staffed dispute resolution program, MediateArt, that was started with our support and provides annual trainings for volunteer mediators. In addition to providing mediation for our own constituents, we are able to collaborate on cases that involve disputants in both California and New York.
In the meantime, we have expanded CLA’s alternative dispute resolution programs in California in various ways that address cross-cultural conflicts. In Sacramento County, we have received DRPA funding to provide peer mediation training at selected elementary, middle, and high schools. Through exercises and role plays, the participating youth learn how to defuse tense situations, reducing incidents of harassment and bullying that can result from ethnic, class and gender differences. We also offer same-day courthouse mediation to people who are seeking restraining orders from the civil harassment unit of the Sacramento Superior Court. These conflicts, loaded with hostile communications between the parties, often arise between business and residential neighbors who have different ethnic, cultural, and religious backgrounds as well as conflicting expectations about living or working in close proximity with others. Our mediators are placed at the back of the courtroom, where they are available for immediate referrals from the judges assigned to hear the civil harassment cases. While participation is voluntary, most of the disputants agree to spend an hour with our mediators and often leave with agreements that drop their request for a restraining order, which results in dismissal of the case without prejudice.
Recently, we received a two-year grant from the National Association for Community Mediation to expand our services to young adults. After a year-long planning process with a selected cohort of organizations from states around the country, we reached an agreement with Hip Hop for Change, an Oakland-based organization, to provide mediation training for their street canvassers. The canvassers, who are largely people of color, are sometimes confronted with hostile reactions as they solicit funds for social justice causes. Through our mediation training, they learned how to defuse confrontational situations with active listening and reframing techniques. The organization also included a clause in their personnel policy that the organization would refer any internal disputes to mediation.
Other funding from city and state agencies has allowed us to incorporate some of the elements of our mediation training into CLA’s workforce development programs that place disadvantaged people in paid internships with arts organizations. These programs include Spotlight on the Arts that places teenagers in summer jobs, and Designing Creative Futures, a state-funded project that provides work experience for formerly incarcerated persons. The trainings in communication and negotiation skills that are drawn from our mediation practice are essential elements in the professional development workshops that we offer to the participants in both programs.
We also expanded our ADR menu to include facilitation skills that have been implemented in a variety of contexts, including discussions about public policy initiatives that have led to more equitable arts funding. In one notable example, a prominent city-sponsored cultural festival in San Francisco, Festival 2000, was closed after the organization’s board of directors declared bankruptcy in the middle of its three-week run. AAMS provided facilitators who had strong mediation backgrounds to lead separate discussions with the arts community and with a city task force that was struggling to develop a response to the public debacle. As the result of our facilitated meeting of the task force, which included more than 50 arts and municipal leaders, the group designed a Cultural Equity Fund that has since provided millions of dollars in competitive grants that are administered by the San Francisco Arts Commission.
The mediation techniques of active listening and principled negotiations have also been infused into CLA’s inter-sector advocacy strategies that have included a series of Arts and Environmental Dialogues and our Arts in Corrections Initiative. During a series of three meetings that brought several hundred arts and environmental leaders together in different cities in 2008, 2011, and 2013, members of our mediation panel facilitated conversations that resulted in new understandings about how to work together across the boundaries of the different interest groups for the benefit of the common good.
Through CLA’s Arts in Corrections Initiative, which started in 2011, we developed evidence-based demonstration projects that were designed to show the benefits of arts programs for people who are incarcerated. Our collaborative work with several arts organizations, elected leaders, and the California Department of Corrections and Rehabilitation benefited from the most basic aspects of our mediation practice, which aims to engage the participants in listening to each other in order to solve problems through collaborative exploration and principled negotiations. An important common interest for the prison officials, legislative leaders, and artist/advocates was to expand opportunities for rehabilitation in order to reduce the prison population.
As a result of CLA’s evidence-based research and collaborative advocacy, funding for art programs in the state prisons, which had been eliminated in 2003, was restored to an annual level of $8 million a year by 2016. As the arts programs have become institutionalized, they have provided significant additional benefits inside the prisons that include reductions in racial tensions and development of informal networks for collaborative problem solving across cultural barriers.
As our experience at California Lawyers for the Arts demonstrates, mediation provides a toolbox full of useful problem-solving techniques that can be applied in many cross-cultural contexts to defuse tensions and develop creative resolutions. Active listening, reframing hostile communications, fostering principled negotiations, recognizing mutual interests, brainstorming hypothetical solutions, and articulating points of agreement can restore relationships while helping the participants find the way forward. We have applied these elements in situations that have ranged from mediating relatively simple issues between two artists who disagreed about their respective roles in a production to facilitating collaborative strategies that increased public funding for the arts to meet critical needs. Our use of the co-mediation model also aids in balancing equitable interests and bringing to the table diverse problem-solving perspectives.
