A Brewers Only Dialogue

It's right around the corner. This biggest beer festival in the Western Hemisphere (I think): The Great American Beer Festival.  During the week of October 6-13 Denver, CO will be brimming with craft brewers from around the country, and beer enthusiasts from around the world.  Over 600 breweries bring multiple beers for three days, four sessions of beer sampling all in one place. Quite the experience, to say the least.  But that ain't it.  Denver has a fantastic craft beer scene, not to mention geographic scenery. There are many "smaller" events that take place during that week, most of these are special tappings or tasting parties. Falling Rock Tap House, Freshcraft and the Rackhouse usually have awesome events.

And while these events focus on enjoying great, sometimes rare, beer, this year there is another event that separates itself from the others.  The Great American Brewers Dialogue (GABD) will kick off its first installment on October 9th.  With so many craft breweries and their staff in town, it makes sense to try to gather them in one (or several) places to engage in group discussion about their industry. Rarely do brewers et al find free time to exchange ideas and talk about problems or obstacles they face. The GABD is a chance for them to air these out.

Since there are so many brewers in town, several locations will host these discussions simultaneously: Prost Brewing, Strange Brewing and Vine Street Pub are lined up now as hosts, with more to be added if the number of attendees pours in beyond venue capacity.

What makes this different than just a collection of brewers in one places is the addition of professional facilitators from OvalOptions for Conflict Management to help guide the groups through dialogue. These facilitators utilize methods to improve discussions, brainstorm, keep everyone engaged, and discover possible solutions to problems.  So now we have brewers gathered in one (or 3) place, where they can (re)connect with each other, focus on certain topics for discussion (each group decides their own topics), and professionals to help unpack and address concerns. Sounds like a good deal, even better since it is FREE!

It is only open to brewers and brewery staff to keep discussions open and confidential. Like everybody, brewers are reluctant to advertise problems they face. The GABD provides a safe space.  This should be fun and interesting!

Mediation Between Magic Hat and West Sixth Breweries

Magic Hat and West Sixth breweries go to mediation!   Well, sort of...

It is refreshing to see that the two parties in a trademark dispute are opting for mediation, according to reports.  Lawsuits and court processes are expensive, drawn out, unpredictable and uncontrollable by the parties. Mediation offers an alternative process that is quicker, less expensive, and retains control of the process to the parties. Unpredictability remains, but this is usually a good aspect allowing for the discovery of hidden or latent problems, and/or the creation of unique solutions. Hopefully, Magic Hat and West Sixth will benefit from this mediation, and I applaud them for their efforts.

What troubles me is the selection of a magistrate judge to serve as mediator.  Now, I do not know who this judge is, so I don’t want to…judge, but for the most part, judges are not mediators.  Sure, they can “mediate” according to their definition of mediation, but this falls short of the processes used by experienced mediators.  A common mistake is to assume that those in the legal profession (attorneys, judges, etc) are also seasoned mediators.  This is not true most of the time.  To be sure, some mediators are, or were attorneys and have changed professions. Yet, the experience gained in the court system does not translate well to mediation.

The primary distinction between mediation and litigation is the focus of advocacy.  Whereas the attorney advocates for her/his client and for a winning judgment, a mediator advocates for the mediation process and helps parties come to an agreeable resolution. The goal is not to prove right/wrong, legal/illegal, or decide who put forward a better argument; it is to overcome the dispute through a resolution that both parties agree on, and, for the most part, create.

Perhaps attorneys and judges realize this, and they probably do. Their challenge is to reach such resolution by using the most effective techniques during mediation. While facts and figures work well in the courts, they have little bearing in most mediations. Again, mediation is about resolving a dispute on agreeable terms by both parties, and not what the data influences. After years of argumentation, adjudication, and client advocacy, it is difficult for anybody to transfer to process-focused methods. This is not to say that some once-legal-minded mediators cannot effectively mediate, but merely to point out the fact that mediation skills are not easy to grasp and practice. Becoming a skilled and effective mediator takes time; it is a full time practice.

My fear is that the mediation West Sixth and Magic Hat will, reportedly, undertake may be more of an arbitration and less of a mediation.  That is, the mediator will hear the arguments and decide on a resolution for the parties, instead of the parties coming up with one with the assistance of the mediator. I could be wrong.  But if this mediation does not work, it will give Mediation in general a bad rap. And that will hurt everybody who becomes involved in a dispute, and that’s all of us.

Trademarks: Here We Go Again

It seems like we can't even blink between trademark disputes in the craft brewing industry. And it also seems like each dispute grows uglier than the previous.  Today, we see two breweries engaged in this ugliness: Magic Hat Brewing Co. and West Sixth Brewing, with the former suing the latter for trademark infringement. Social media sites just ooze of nastiness, mostly from supporters of each brewery, but occasionally from the breweries themselves--at least, they have not done much, if anything, to stop the flow.

Some of the rancor stems from the image of a giant beer company picking on a weaker one. And this does not sit well in a culture that has only recently become aware of the affects of bullying. Magic Hat is the playground bully; West Sixth is the new kid at school. The fight has begun.

Sadly, it could have been avoided. Private phone conversations, one-on-one discussions and even email would have been preferable to social media, lawyers' letters and lawsuits. Even though it sounds like attempts at personal contact were unsuccessful, going from discussion to lawsuit is a giant leap over some critical steps. Facilitated dialogue, mediation, and settlement conference are always options for disputants.  While more effective prior to retaining legal counsel, these options are still on the table.

Still, it surprises me that Magic Hat and its corporate connections have not figured out the power of social media. A power that can build and destroy. West Sixth knows this and are using it to their advantage. At least, so far. While I'm no prognosticator, this dispute will harm both breweries. And that's sad. 

Why I Love Beer

People who do not really know me think I drink a lot.  Just because I have reviewed over 1,600 beers online doesn't mean I drank them in 4 days. No. I take my time drinking a beer.  It's rare that I have more than 2 beers a night, and most nights I don't have any.  Of course, this was not always the case. 

While I didn't touch any alcohol until I was 21 years old, when I did start to drink it was mostly beer (Bud) with some shots mixed in. Still, I never drank alone. It was a social thing back then, and remains (mostly) so today, albeit with a little more style than yesteryear. I love the differences in making beer, the variety of ingredients and variations of combining them, and the spectrum of flavors; from super sour to malty sweet.

When I was younger, Cheers was my favorite TV show--still is. The closeness and camaraderie in that studio bar really hit home with me. Combine that with my history degree that highlighted the role of pubs and taverns through the Colonial days, and I started to see beer (and pubs) as an important social cog in the wheel of civilization.

Living in Denver facilitates this interest: The metro area has a ton of breweries, tap rooms, and beer bars, not to mention many beer geeks.  It's no wonder that places such as Denver Beer Co., Hogshead, Dry Dock, Prost and Strange Brewing Co are packed with patrons every night.  Consider that these places are not the only on-premise beer joints.  Denver is also home to several very large liquor stores that carry hundreds of beers.  If beer were the only factor, then people would be drinking it at home and not packing  the beer halls.  No, there is something more than just drinking beer.

People go to these beer venues to try new and good beer. And to mingle with their fellow citizens, meet new friends, tell and hear great stories, and have fun. This is one reason why I love beer.  It truly is a social lubricant. It helps people unwind, not from the alcohol, but from the joy of drinking good suds (the Colorado scenery doesn't hurt either).

More people should take advantage of what beer halls have to offer. The Pub Dialogues is an effort to do just this: Gather people to share beer and ideas about social, political and community issues. Colonists did it years ago, and look what came out of that.

What's More Important: Definitions or Beer?

What is a gypsy brewer?  How do they differ from regular brewers? Should they be held with the same regard as regular brewers?  These questions have come up, either directly or indirectly, in a recent blog from a brewer in Massachusetts. A gypsy brewer (or contract brewer) is one who uses other breweries' equipment to brew his/her beer.  Mikkeller is probably the most commonly known one, but there are many others. So why are they getting some heat?

The gist is that gypsy brewers are not real brewers since they do not brew the beer themselves and/or are not present when their beer is brewed. They do not own brick and mortar localities and rely on the talents of others for brewing their recipes. Financially, they have not invested or risked as much as those regular brewers, which makes them seem as just trying to get a piece of the pie with less effort.

These are opinions, based on facts.  It is a fact that gypsy brewers use equipment that is not theirs (or the bank's). It is true that sometimes they are not present when their beer is brewed. The opinions rise from there. 

But what is also true is the common claim, by brewers, that beer isn't beer until the yeast has done it's job: brewers make wort, yeast makes beer.  So, who are the real brewers?  Ok, so this is nitpicking a bit.  Yet, I think it's important to acknowledge the whole process before rendering opinions of absolute labeling.

Of course, we could look at new technologies and ask ourselves who the brewers really are. Push button computer software can follow the progress of the brewing cycle and make minute changes when need to follow a recipe. Some software can even be overseen and controlled off premise: that is, by the brewer from his/her couch at home. In this case, is the brewer still a brewer?

My answer is, who cares?  What's the deal with the focus on definitions of such trivial scale? Sure, I can understand the difference between sweating all brewing and picking up wort. I'm not saying brewing and gypsy brewing are the same. My question is why should it matter? Maybe giving credit where credit is due is the underlying issue.  If so, then perhaps labels on the bottles/cans can provide satisfaction.  I'm sure they are options to consider.

The bottom line for me is that if you admonish some beers for being "contracted", then you are missing some great beer.  AND doing disservice to those who actually did sweat all day making the wort. It's still great beer, those who worked on it got paid, and the yeast finished it off.

What's the Matter with Craft Beer? Cracks in the Foundation

The Craft Beer industry is taking off; sales are rising, approaching 10% of overall beer sales, which interestingly have dropped. Craft Beer is growing, even through Recession. No doubt this is time for rejoicing for craft beer, craft beer geeks and tap rooms. But there are fractures in the foundation that are coming to light. How these are managed can either fix the cracks, or expound them.

It is important to note that craft brewing is a business and must take on certain business responsibilities. One is establishing and protecting a brand. For the most part a brand is a name. To differentiate beers consumers (for the most part) identify with names: Sam Adams (by Boston Beer Company), Budweiser (AB-InBev), Coors (MillerCoors).  If Boston Beer Company labeled one of their beers "Bud", AB-InBev would see this as trademark infringement (and so, too, would a judge).  This blatant example illustrates why trademark laws are in place.

However, in the business world of trademark infringement the devil is in the details. While "Bud" is an obvious example, Righteous is not, nor is Seven Seas. In these cases the breweries involved are geographically separate, their markets do not overlap. Ostensibly the struggle is to keep other craft breweries from copying each other, stealing names and taking advantage of others' successes.

While some of this might be true, we must look at the business side: protecting trademark.  For if a company does not protect its trademark, then it could lose it, if not now then later. So a brewery on the west coast must keep an eye out for similar beer names/labels emerging on the east coast, not for fear of theft of customers, but of losing trademark. If that happens, then larger companies that are closer can start using that same name/label, and no infringement of trademark can be claimed.  

So, to take "Bud" as an example (which was actually contested in court), if Boston Beer Company started using "Bud" to label a product, and AB-InBev did not claim infringement, then anybody could start using "Bud"…even MillerCoors. Brand recognition would be out the window as would fair competition.

While this may sound easy to avoid, it certainly is not. Trademark infringement disputes are going to happen. In a growing industry full of small companies, it is inevitable that names/labels will fly under the radar, only to appear in the form of cease and desist (CD) letters.

And this is how management of these disputes can either fix the cracks, or widen them. Sometimes the business decision is not best for the business, especially in a personal industry like Craft Beer, and with the explosion of social media.  Trademark protection is necessary, but it's not as black and white as a CD letter.