When it comes to celebrity defamation, be it a cinema, sports, political, music or broadcast personality involved, a dispute can take two paths – one ends with a public airing in the courts and the other with an out-of-court settlement. The psychology behind both of these may seem obvious – in one scenario the injured party wants to ‘clear’ their name and in the other, in this celebrity obsessed society, they want to preserve what little valuable privacy remains in their life. I believe that mediation, where an impartial third party helps parties in dispute negotiate a mutually agreed settlement, is capable of achieving both of these objectives while delivering other benefits.

Defamation and mediation

In the last five years mediation has grown in popularity in all areas of the law, hailing from the introduction of and amendments to the Civil Procedure Rules, and case law that urges consideration of the process, such as Dunnett v Railtrack [2002], Halsey v Milton Keynes NHS Trust [2004] and Birchell v Bullard [2005].  This is equally true for defamation actions, where both celebrities and certain professionals, such as in private medical practice, can feel that their reputation is their career.  Cost and time considerations similar to other legal actions come into play for claimants and defendants as an incentive to mediate, as well as concerns about cost sanctions for refusal to mediate pre or post-issue.  Of course defamation has its own unique psychological and litigation dynamics too.  Parties may want to clear their name in public or stand up for rights of free speech or privacy.  On the other hand changes both in compensation levels available and litigation funding options can alter the cost-benefit equation of taking an action through to full trial.  And lawyers, courts and mediators alike may find that celebrity egos have a unique perspective on negotiation techniques or ‘defamation jurisprudence’ (though of course defamation actions extend into the world of the ‘common man’ too).

The number of defamation cases in general appears to be on the increase:

Mediation can help public figures, musicians, actors, sportspeople, presenters and MPs to avoid the time, cost and general frustration of a court trial and, importantly, it has a settlement rate of around 80 per cent with good mediators. Yet when it comes to celebrities in defamation cases, I believe mediation’s growing popularity has an overarching theme and that is the balance of privacy that mediation can bring back to a case that is, in a major sense, already about the over-exposure of an issue. Of course redress and public acknowledgement by a defendant may also be important  for claimants.  These too can be a part of a resolution achieved in mediation, by way of agreed public statements after the mediation.

In both the Hudson and Beckham cases you might argue that the defendant had more to gain in reputation from participating in the mediation process but disputes can reflect negatively on both parties and make the control offered by mediation very attractive.

Case study: Tabloid couple settle on a better future

This year CEDR mediated a case for a well-known celebrity couple and ‘tabloid regulars’ who were fed up with damaging reports in the media and wanted to end the current defamation on their own terms.

Crucial to the settlement was an agreement between the parties on two elements of privacy, which were how the current issue could or could not be reported, and an undertaking as to how future stories would be considered. This agreement satisfied both parties and was in addition to a financial settlement. It is unlikely that a resolution on these terms – within the parties’ control - would have been possible in a courtroom, where any decision would have been imposed by a judge.

Mediation becomes glamorous

CEDR has handled an increasing number of celebrity-related mediations involving performers, celebrity businessmen, agents, athletes and sporting bodies over the last five years, which is a sign that the appeal of mediation has genuinely spread far and wide.  I am the first to admit that initially there was uncertainty around the mediation process until lawyers and parties realised its low-risk qualities as a process that only becomes binding if and when the parties formally agree a settlement.  Over time the process has become more de-mystified and its credibility increases as more lawyers experience its benefits and the relatively negligible cost for their clients. 

Chris Walsh, writing in World Sports Law Review, November 2005, quoted my colleague Eileen Carroll, Deputy Chief Executive of CEDR,  who was forthright in her view that celebrity disputes are eminently amenable to mediation in enabling a highly trained independent mediator with a proven track record to employ a specialist professional approach to resolve deadlock negotiations.  She pointed out that: 

“The dynamics of a mediation suit celebrities, and sportspeople in particular, who are generally driven, competitive individuals who enjoy the fact that mediation enables them to take back control of the process from their lawyers and other advisors.”

In the middle of a conflict situation this control element should not be under-appreciated and can be highly useful.  Very few people, let alone celebrities, politicians, personalities or sportspeople, are ever completely comfortable in a formal court or arbitration tribunal environment, whereas being able to put the parties at ease in a non-confrontational way is the key to a mediator’s role. 

“Experience dictates that clients overwhelmingly respond constructively to that approach.  Importantly, the mediator can create this environment by having a ‘carte blanche’ with which to operate and by not being restricted by rules of legal procedure or evidence.”

Case study: Radio gaga

Confidential and emotional defamation dispute settles in one day

Amount in dispute:  £200,000
Time between referral and
mediation:  5 months
Length of mediation:  1 day
Cost:  £3,000

A dispute arose following a radio broadcast that offended and upset a group of individuals whose feelings were extremely volatile. The parties were deeply entrenched and much work was required by CEDR Solve to bring the parties to mediation. This was a highly emotional case and it was important to assure the parties, particularly the individuals concerned, of the complete confidentiality of the mediation procedure. Although the parties were unlikely to have any further contact, the individuals affected wanted to know that there would be no repetition, that changes had been introduced by the broadcaster to prevent similar situations arising and that damages (a less important, but not insignificant, feature of the dispute) would be paid.

Mediation was particularly suitable to this dispute, as there were a number of personal issues. The parties were motivated as much by non-monetary solutions as by the purely financial compensation. It was important for the individuals to feel that they had been heard and listened to, something not often possible in 'court-step' settlements. The mediator enabled them to communicate their complaints, satisfy themselves with the response and then eased the parties into agreement over damages on a group basis. A final settlement including costs was reached after one day of mediation.
  
Why might mediation have the x-factor?

Well-known people, from all fields, in a celebrity-obsessed world have to protect their reputations more than ever before. In addition to the direct costs of legal fees and time arising from disputes, the indirect costs to the value of their ‘industry’ reputation can be even higher. Mediation can provide a comfort zone within which solutions can be explored in relative legal safety – for example, where termination packages, reputational property rights, or the prospect of an apology are being explored.

Thus, a celebrity or their legal adviser may think about the following, in exploring the use of mediation:

Mediation works in celebrity cases because it can allow for ‘star egos’ and offers a non-confrontational process run by a neutral. Mediators can of course be chosen from specific backgrounds if that is thought important in a particular case; yet whoever mediates, the fairness practised through encouraging an objective and neutral process cannot be underestimated.  The psychology of the process can offer ‘a day in court’.

It can look beyond the right and the wrong of the matter to the parties' long-term goals, often finding solutions that are only constrained by the imagination of the participants; for example future contracts, joint promotion and exclusivity deals – in addition to privacy clauses.

In any situation where there are strong personalities there will be differences, tensions and problems to solve, however reasonable that personality may be. Having one’s ‘day in court’ can be very important to a wronged party – but this must be weighed against how the rest of the world will perceive the celebrity to appear. Being subjected to cross-examination by a QC is not (with the possible exception of some politicians) an experience many enjoy or come across well in. Whereas in a confidential mediation an agreement can help both parties save face.

Case study: A sporting chance

Emotive defamation dispute provides governance improvement

A well-known sports team manager was alleged to have used abusive language towards the officials of the sport’s professional organisation, in breach of its regulations.  It then refused to provide representatives for any matches involving that team. In the course of investigations the allegations were repeated to the media. The manager claimed that repeating the comments to the media was defamatory. He claimed these comments had a damaging impact both on his reputation and in terms of other teams declining fixtures with his team because of his alleged behaviour.

The parties decided to approach CEDR Solve to attempt mediation. This was a highly emotional dispute and pre-mediation contact between the mediator and the legal representatives of the parties helped to create a calm climate for the mediation, and to clarify and establish procedures for the conduct of the mediation.

Parties agreed to have a joint initial meeting that enabled each side to see the emotional importance of the dispute. The venting of emotions was a necessary part of this mediation.

Following a series of private meetings with the mediator and each party, a settlement agreement was reached. The parties' legal representatives played an important role through their co-operation, being both pragmatic and realistic.

The settlement incorporated agreed protocols for the sports organisation, the establishment of procedures for complaints and the creation of a working party, which would include the manager as a member, to improve standards and communications.
The parties were "impressed" with the mediation and satisfied with the achieved solution. Everyone was able to shake hands at the end of the day and look forward to a future working relationship, in contrast to the end of a day in court.

Of course, not every mediation succeeds in settling a case, but at least parties can feel comfortable that they have given their best shot at an economic yet thorough attempt at resolution – leaving celebrities free to look forward to an era of televised trials!