First of all, determine whether you actually have a dispute at all. This might sound silly, but it is a legal and practical reality. Many disputes never make it past the preliminary stages of a legal proceeding because of what is called “a failure to state a cause of action.” In short, there’s nothing to argue about. Are you angry because of personality conflicts? Are you hurt because you wanted to wear black on stage and the rest of the band wanted to wear blue? Ask yourself whether your disagreement can be viewed and resolved objectively, and whether it requires a specific action that needs to be determined in order for both parties to proceed with the project or their careers. Short of that, you may just need to resolve your feelings instead of a dispute.

Another maxim used in the legal field is de minimus non curat lex, a wonderful Latin phrase that means, “The law does not cure trifles.” You need to determine whether your dispute is worth the time, effort, and expense of using a third party to determine the outcome for you. Even if you vow to take your matter all the way to the Supreme Court, have you objectively evaluated whether the end result will equal what it takes—both in financial and emotional costs—to get you there?

When resolving disputes, it is important to identify what kind of remedy you are seeking. You may be looking for damages that are measured in monetary terms. These can be actual damages, which refers to the amount of money actually lost by the aggrieved party; speculative damages, meaning the money that could have been earned; punitive damages, an amount meant to punish one of the parties; and liquidated damages, a predetermined amount of money that the parties agree will be paid if there is a breach of contract. Sometimes, the law will specify a certain dollar figure for a certain action. Such remedies are called statutory damages.

Occasionally money does not or cannot provide appropriate compensation for a party. For example, how can one put a dollar figure on the value of a songwriter’s exclusive services, especially if the writer hasn’t written any songs yet? How about the value of a lead singer leaving a band under contract to make three more recordings for a record label? In these instances, aggrieved parties seek equitable remedies.

One type of equitable remedy takes the form of an enforceable court order that prevents harm from taking place. This is called injunctive relief—one party is stopped or enjoined from taking the harming action. An order for injunctive relief is a pretty severe remedy, so it is not an easy one to obtain. Depending on the gravity of the action being prevented and the speed in which the order is needed, a preliminary measure could be for a party to obtain a Temporary Restraining Order (a TRO) that will last a short period of time, followed by a preliminary injunction that stays in place until such time as a permanent injunction is granted or denied. An example of this process would be if a concert promoter is gearing up to present an annual three-day extravaganza for an audience of 50,000 people on a particular piece of real estate. The neighbors of the property may try to prevent the concert and future concerts from happening out of concern for the environment, and may want to avoid all of the disruption that comes along with 50,000 concertgoers. If the initial concert date is imminent, the neighbors are likely to seek a TRO to prevent the immediate concert from taking place, while at the same time try to get the court to issue a preliminary injunction followed by a permanent injunction to prevent the promotion of any concerts in the future.

Another type of equitable relief that is often used in the entertainment industry is specific performance. Obtaining a court order for specific performance essentially enforces the terms and conditions of an agreement to make sure that the parties follow through with their promises. For example, if a recording artist decides that they want to leave a long-term agreement with a record company for one reason or another, the record company cannot be adequately compensated with money for the loss of such a unique talent from its roster. The company will seek a court order for specific performance, requiring the artist to fulfill the entire duration of the contract. If this court order is granted, the artist cannot enter into an exclusive artist agreement with another record label due to the original agreement. The specific performance choice of remedy would also apply if a performing artist should decide at the last moment to skip a concert date. The promoter would seek an order for specific performance so the concert will go on because money damages alone for intangibles such as the promoter’s reputation and irate ticket holder’s feelings would likely be difficult to calculate.

Before seeking outside intervention, determine whether you have exhausted all of the remedies you could do on your own. You can do certain things to document your position and strengthen your case if a dispute should ever escalate beyond resolving matters yourself. If you are seeking payment for services, have you gone through at least a few standard cycles of invoicing? If you are unclear of a term of an agreement, did you try to clarify it or did you proceed and hope that things would somehow clear up later?

One of the first steps you can take toward resolving your dispute is writing a demand letter. A demand letter is a non-emotional statement of your version of the facts of the dispute along with a demand for some kind of action from the other party. A well-written demand letter should include an accurate timeline of the events leading up to the dispute, what you feel is actually in dispute, what specific action you want taken, and when you want the action to be taken. Whether by conventional mail, messenger, e-mail, or an overnight service, sending your demand letter with some kind of proof of receipt will be further evidence that the other party actually read your message.

You can also include what I call a consequence line, an action step that you plan to take if your demand isn’t met. If you write a consequence line, be sure that the consequence is a rational and legal consequence. Direct or implied physical threats against someone (for example, “If you don’t do what I say, I’m going to get you,” or, “Watch your back if you don’t meet my demands”) compromise your position later and can be viewed as an illegal threat. A statement such as, “If you do not respond as requested within 10 days, I will seek any and all legal remedies available to me,” is more likely to be looked upon as a reasonable consequence for you to put in writing. Whatever you include as a consequence line, be prepared to follow through with it. Idle threats are usually met with further inaction.

Crafting a demand letter is extremely helpful in sorting out the facts and the issues at hand. Multiple issues may need to be separated from each other; the reason they are all coming to a head finally is because you let them accumulate. You may find after you have laid out the facts objectively that there is no dispute at all, just a misinterpretation of facts or feelings. With a combination of clarity and communication, the objectivity and businesslike nature of a well-crafted demand letter will often pave the way for resolving many disputes.

A popular method of resolving a dispute in a non-adversarial manner is to mediate a settlement between the parties. With mediation, a neutral, objective mediator or team of mediators evaluates the issues and evidence from the various parties and works together with them to try to resolve the issues. Mediators are trained to promote compromise and to stay neutral throughout the process. For mediation to work, the parties first need to agree that the purpose of their work with the mediator is to reach an agreement rather than have a clearly defined winner or loser.

Mediation services can be found in most municipalities. Check with your local bar association or business directories under “mediation services.” Some arts organizations and law organizations offer mediation services specializing in art matters. If you have such a service available to you, try to find a mediator who has a subspecialty in music. This is very helpful, because such a mediator will already have a general interest, knowledge, and expertise in your field, and therefore, a clear idea of the issues at hand. You won’t need to educate your mediator, so you will pay less for the service (most mediator services bill hourly) and your mediation will be more efficient and accurate.

Arbitration is a middle ground for dispute resolution that is less formal than a full court proceeding. Parties first need to agree to arbitrate a dispute, so neither side is there involuntarily. They mutually choose a third-party arbitrator or a panel of arbitrators to determine how their matter should be decided. Parties may or may not use lawyers to represent them in arbitration hearings, and the court’s rules of evidence are somewhat relaxed, but many of the procedures and rules can be similar to a court proceeding. As with mediation, some arbitration services have specialists who are familiar with the business and issues of musicians.

Parties may agree to binding arbitration or non-binding arbitration. In binding arbitration, the decision of the arbitrator is final. Non-binding arbitration leaves room for the parties to proceed to court if they do not agree with the result of the arbitrator. Arbitration is much more streamlined and less expensive than the court process, so disputes can come to a quicker resolution than if you were to go to court.

Many municipalities make small claims court available to parties in need of third-party dispute resolution. The rules and regulations of small claims court vary from county to county, but generally what sets small claims court apart from other courts is that lawyers do not represent the parties and there is a specific dollar figure limit to how much a party can recover. Each municipality sets this limit, so you need to do some research to determine whether small claims court is the right venue for you.

If you are reading this book, you have probably performed music in front of an audience at some point in your life. If you will be going to small claims court, use the same common sense and guidelines for your day in court that you would for one of your performances. Be prepared with written material to guide you (this is where your demand letter is helpful), dress appropriately for your “audience,” and be courteous. Above all, tell your story with accuracy and conviction. The judgment of a small claims court is binding and enforceable, but can be appealed if one party feels that the judgment was inadequate or the wrong interpretation of the law.

There is a time and a place for everything, and sometimes that includes full-blown, all-bets-are-off litigation. If all other avenues of reaching a resolution appear to be fruitless, the parties can go to court to have their issues determined by a judge or a jury. But litigation takes time, expertise, gamesmanship, and money.

If you are a party in a civil lawsuit, hiring a litigator by the hour can add up quickly. One way to hire a lawyer is on a contingency basis. In this case, the lawyer is paid a percentage of what is awarded to the client from the outcome of the case. For a lawyer to take on a case on a contingency, you will both have to evaluate the matter to determine the likelihood and the potential amount of an award. Note that except in extraordinarily strong cases, this evaluation is highly speculative. If you are the defendant in a lawsuit and are not likely to be awarded money from the suit, it is unlikely that you will be able to hire a lawyer to defend you on a contingency basis; you are simply forced to pay out of your pocket.

In civil litigation cases, strategies are developed, rules of procedure and evidence are strictly enforced, the exchange of information, documentation, and initial witness testimony takes place in the form of depositions (oral statements) and interrogatories (written statements) as the parties prepare for their day in court before a determiner of fact. If a case is tried before a jury, a great deal of time is spent on jury selection to make sure that the trial will be a fair and unbiased one. This is especially important if one or more of the parties are celebrities about whom the jury pool may have already formed opinions.

If either party feels that a judicial error was made in a civil trial, that party can appeal the decision. Verdicts can be large at times, resulting in decisions of millions of dollars, or they can be surprisingly small, leaving the parties with little but legal bills. Losers sometimes end up having to pay the legal bills for the other side.

Entertainment litigation is not for the faint of heart and is a time-consuming affair. I am not for a moment minimizing the good faith effort of those entertainment lawyers truly trying to make a point, zealously representing their clients and using the court system to better interpret entertainment law issues. Based on the nature of the economics of going to court, I am enough of a realist to know that not all of the worthy cases will make it to a judge or a jury.

To avoid disputes, the best place to start is with clear communication. Carefully choose whom you do business with, have a strong sense of ethics, use solid agreements, and deal with others fairly. Despite all precautions, disputes are likely to occur. Regardless of how you choose to resolve your disputes, you need to be clear about your goals, the issues, the facts, and how much you are willing to invest to reach your desired outcome.