Detailed Discussion

For a range of reasons (including historical and ongoing injustices), First Nations artists or organisations may not always be in a position to negotiate the terms of an arrangement equitably.

Parties working with First Nations artists need to consider:

• Renegotiating biases: Existing structures, procedures and processes within the sector have often been established with limited consideration for First Nations voices and ways of connecting with culture and making art.

• Power imbalances: Identify any inequities that may be at play and work to mitigate rather than exacerbate them. 

• Information: Ensure artists have access to clear and transparent information, including terms and conditions, to maintain agency in decision making and to enable informed consent. 

• Indigenous Cultural and Intellectual Property (ICIP) rights: Ensure ICIP is respected and valued, and cultural protocols are adhered to, see First Nations.

If a dispute involving First Nations artists arises, it’s important to acknowledge that cultural practices of dispute resolution may need to be considered and utilised to ensure a fair and equitable outcome. This may involve the utilisation of First Nations specific mediation services available in some states and territories.

Indigenous Art Code can assist First Nations artists to communicate with and access transparent information from parties they are working with in relation to commercial arrangements, which may prevent disputes from arising or escalating.

Arts Law's Artist in Black program can also assist in reviewing agreements and providing other advice.

Legal obligations apply in the areas of tax (see Taxation) and superannuation (see Superannuation), workplace health and safety (see Workplace Health and Safety), National Employment Standards, equal opportunity (see Racial Equity and Representation), consumer protection, accessibility (see Access Rights for d/Deaf and Disabled People), intellectual property (see Intellectual Property), Indigenous Cultural and Intellectual Property rights (see First Nations) and consumer rights.

Fair Work Ombudsman’s Discrimination, Bullying and Harassment and Effective Dispute Resolution also apply in this area.

The Four Stages 

There are four stages of dispute development and resolution.

1. Prevention

   1. Prevent disputes from arising by:

      1. establishing a transparent and respectful relationship with a shared understanding of expectations

      2. regular and open communication at all stages of a project or arrangement

      3. documenting the arrangement and ensuring all parties fully understand and agree to it

   2. Prevent disputes from escalating by:

      1. considering and working to address the root source of the conflict      

      2. listening and taking the issue seriously      

      3. maintaining confidentiality      

2. Negotiation 

   1. Resolve disputes through:

      1. direct or assisted negotiation

3. Alternative Disputes Resolution (ADR)

   1. Resolve disputes through:

      1. facilitative ADR, usually mediation

      2. advisory ADR, usually non-binding expert evaluation

      3. determinative ADR, usually arbitration or binding evaluation

4. Ligation 

   1. As a last resort, ligation, engaging legal representation and following court processes

The Fair Work Ombudsman has Online Resources and Tools available to assist in preventing and resolving workplace issues.

Prevention

Informed consent is critical to prevention. Expectations of all parties should be documented in a written agreement.  

Should a grievance arise, considering and addressing the root source of the conflict will often prevent it from escalating. This can often be traced to different views about goals, information, communication styles, priorities, ways of working and beliefs. 

Listen and take the issues seriously. Grievances may arise when one party feels unhappy, confused or aggrieved by a situation and it is often possible to resolve an issue before it escalates.

Identify the issue by asking:

• Can each party describe in one sentence what they consider the issue to be? 

• In another sentence can each party describe what they see as the ideal resolution?  

It is also important to identify when an issue relates to a breach of a legal obligation such as a copyright infringement. In these instances, it is important to seek independent legal advice, such as through Arts Law.

Negotiation

Using negotiation to resolve disputes involves finding common ground and deciding where you are willing to compromise. 

Fair negotiations require the existence of a relatively equal power balance between the two parties. If you are a situation where power is disproportionately balanced against you, it may be best to seek professional or legal advice. 

Maintain confidentiality throughout negotiations, as breaking confidentiality undermines trust (and may be a breach of contract). Never air grievances in the public domain, especially through emotional statements expressed on social media. This could open parties up to defamation actions.

See the Checklist below for recommended steps for parties with a dispute.

Alternative Dispute Resolution (ADR)

Once a dispute escalates beyond prevention or a negotiated resolution, avenues exist under a framework called Alternative Dispute Resolution (ADR). 

In an ADR process an independent third person helps to resolve disputes. ADR processes do not include judicial determinations, such as decisions made by a court or tribunal. Arts Law offers an ADR Guide and Service to subscribers for a small administration fee.

The Commonwealth Attorney General’s Office describes three main types of ADR processes:

• facilitative 

  • examples include mediation, conciliation, facilitation and facilitated negotiation where parties are assisted by an independent third party to enter into respectful discussions and arrive at a mutual agreed resolution

• advisory 

  • examples include case appraisal, conciliation (where advice is offered or used) and (early) neutral evaluation     

• determinative 

  • examples include arbitration, expert determination and private judging 

Litigation

Most Arts Law contract templates include a clause on resolving disputes relating to the agreement. These contracts require parties to agree to first holding ‘good faith discussions’ to attempt to resolve a dispute, before moving to mediation and only then arbitration or litigation. 

Organisations have a responsibility to:

• Develop a Complaints and/or Disputes Handling policy which identifies a clear, equitable, respectful and transparent process for managing and resolving conflicts. It may be necessary to have both an internal policy for staff and an external one for contractors, stakeholders or members of the public

• Develop standard agreements, documents and policies for staff and artists which clearly articulate terms and conditions and a dispute resolution mechanism

• Develop standard documents for work with the public which clearly articulate terms and conditions, terms of use or a service charter 

• Maintain open and regular staff communication through employment contracts and enterprise bargaining negotiations, annual performance reviews and supervision sessions 

• Ensure artists fully understand agreements before signing them and have access to independent legal advice or support

• Meet legal obligations as outlined above

Whether working with organisations or other artists, artists have a responsibility to:

• Ensure they fully understand agreements before signing them and access independent legal advice or support if they don’t

• Express concerns clearly and early and follow the recommended dispute resolution process (see Checklist below)

• Take an active role in resolving conflicts including, where appropriate, seeking advice and guidance from industry organisations, legal services, peers and mentors

• Take a practical and reasonable approach to find a realistic and workable solution

Documents such as project briefs and written agreements help to clearly articulate roles, responsibilities and expectations such as deliverables, deadlines and fees. 

Arts Law has a range of Template Agreements which may be useful. These templates include a clause on dispute resolution.