By Daniel Kershen, CEDR Foundation Project Coordinator
Whether its nursing a tall Pepsi Cola in a shady bar in the backstreets of Memphis, eating what looks distinctly like a fried peanut butter and banana sandwich in a cafe off the High Street or sifting through the various badges and pins in the local bric-a-brack store, Mr Elvis Presley continues to be seen the world over.
Indeed one could be forgiven for believing that the King is still alive after the recent news, reported in The Lawyer and BBC, that, in December, Elvis’s estate has brought a claim, supported by litigation funder, Calunius Capital, against Arista Music, the record company that owns the rights to all his songs recorded pre-1973.
The matter in dispute rests on the royalties received from downloads and other new media. The original agreement meant that Elvis and his manager, ‘Colonel’ Tom Parker, who had sold the rights to his pre-1973 songs for $5.4million, received an on-going flat fee of around $10 per song each year. This figure, Elvis’s estate claim, is “conspicuously disproportionate” to the amount that Arista have earned with the emergence of downloads, ringtones and apps featuring the King’s music produced prior to 1973. Elvis’s estate are claiming approximately €12million from 2002 to present, including prospective earnings up to 2023.
This case bears the hallmarks of one that could be saved resources, time and energy through mediation; commercially it is just good business Being able to say “don’t be cruel”, “I got stung” or tell your counterpart that their demands are “too much” or that a party has been “hurt” could have a dramatic effect dissolving enemy images of the other party having a “wooden heart”. Being able to “surrender” ones claims without losing face maintains an organisations public profile and value. Inevitably in conflict one assigns reason to actions, often creating long term business rifts through assumed intentions. Necessarily to growing business is dealing with the “suspicious minds” developed in conflict, instilling trust in your stakeholders and helping them say “I believe”.
Clearing the “Moody blue” by opening a face to face dialogue between the parties in a facilitated process can reduce the emotional resistance to negotiations “way down” and bring about a resolution that both parties can accept. If the two parties are continuing their business relationship, good practice would suggest that having an open dialogue can facilitate a mutually acceptable resolution. Not only this but having the opportunity to build clarity on each-others needs and values may help develop a more accurate and appropriate understanding between the two parties leading to a more productive working relationship; yes a dispute can lead to a relationship being “all shook up”, but the fact that they are in dispute means that a “change of habit” was needed to continue.
Litigation deals much more readily in ultimate statements, in winners and losers. However mediations are in part a facilitated negotiation, there’s no need for the parties to concede and say “Alright, ok, you win” as there is no judgement handed down, it is their choice what the agreement looks like. This means they can address their specific business and emotional needs through the resolution, tailoring it to their position.
It doesn’t need to be “now or never”, the mediation process can be applied at any stage if requested to the court. A key element of mediation is that it relies on “the wonder of you”, the parties themselves, to find a resolution that doesn’t leave them feeling “lonesome tonight”. An effectively run mediation has the potential to holistically resolve the issues, meaning the dispute doesn’t stay “always on my mind”.
Not only does mediation offer all these options, in essence it models the proper way to do business. As mediators, we understand that conflict does happen, especially where two or more parties or organisations are working towards a goal. If someone were to step on your brand new “blue suede shoes”, a demand that they repay you the money spent on them might not get you as far as working with them to find out how best to restore them to their former glory. Mediation makes sense in commercial disputes such as Elvis’s estate versus Arista by modelling best practice and giving the parties the opportunity to explore and negotiate their particular wants and needs before designing a settlement that won’t leave them “crying in the chapel”. Uh-huh.