The benefits of mediation in the art and cultural heritage sector

When it comes to art disputes, perhaps the most obvious example that comes to the mind is that of copying the work of another person. In fact art can give rise to a broad range of disputes revolving around moral rights, chain of title, restitution, acquisition, donation, loan and deposit, insurance, art as collateral in transactions, digitalization, misappropriation of traditional cultural expressions and other forms of disputes as provided by the World Intellectual Property Organization (WIPO) under its Alternate Disputes Resolution section.

There are numerous factors involved in an art dispute; for example, an indigenous community may be at odds with a museum over the return of an object or a form of art that they believe was originally created by their community but is now in the museum’s collection. If the museum uses the cultural object’s image in publications, copyright issues can emerge.

Mediation as a way to resolve art disputes

Moral rights, cultural heritage, and traditional cultural expressions are a few important factors that are difficult to prove in an art dispute because there are no laws governing them and because the court system is unable to measure the emotional attachment an artist or community has to the art. Of course, there is also the problem that court cases are very costly and time-consuming, cause negative publicity, and, in the end, may not satisfy any of the parties. For instance, the market may not accept a court’s determination that a work is real or fake when the issue of authenticity is at issue.

Mediation can help greatly in avoiding the above as it allows the parties to tackle sensitive non-legal issues relating to the dispute. Diverse issues of emotional, commercial, cultural, ethical, political, historical, moral, religious, or spiritual nature, as well as customary laws and protocols, may be taken into consideration.

Alternative Dispute Resolution (ADR) is generally considered as referring to a variety of private, out-of-court dispute resolution mechanisms that allow parties to resolve their dispute in a more flexible, time and cost-efficient way, giving parties control over the process and the possibility to select one or several independent mediators, arbitrators or experts.

It is an informal procedure in which the parties request one or several mediators to assist them to settle their dispute. The mediator facilitates the settlement process by furthering dialogue between the parties and helping them identify their underlying interests to reach mutually satisfactory solutions. Depending on the parties’ agreement, the mediator can play a facilitative or evaluative role, but cannot impose a decision on the parties.

Mediation may be especially useful in conflicts involving works of art and cultural heritage due to its informal, private, non-confrontational, and interest-based nature, which allows for the consideration of delicate, non-legal matters and the maintenance of relationships. If mediation is effective and the parties reach a settlement agreement, it has the legal status of a contract.

The benefits of mediation in the art and cultural heritage sector

  • It can save time and money. International parties from various nations frequently participate in conflicts concerning works of art and cultural heritage. By using mediation and ADR processes, parties can settle their issue in a single proceeding rather than taking their claims to the courts of many different countries, which saves both time and money.
  • It is a good forum to hear sensitive issues. For disputes involving works of art and cultural heritage, mediation offers a flexible platform for the examination of sensitive non-legal matters as well as legal ones that may be challenging to address in court. A mutually agreed solution that protects the parties’ long-term relationship can be reached through mediation when the mediator is able to identify and discuss especially sensitive areas with the parties.
  • Mediators can apply customary laws and protocols. When indigenous groups are engaged, mediation and can serve as a venue where their specialised laws, rules, and codes can be taken into account and put into practice. Attempts have been made to undertake significant research on customary laws and the role of IP in them by organisations like WIPO’s Traditional Knowledge Division since this is one of the topics that has proven to be the most challenging to handle.
  • It helps preserve business relationships. Through mediation, parties can reach mutually agreeable resolutions and remedies that protect their relationships and provide the groundwork for future cooperation. This in turn keeps the business connection strong and opens the door for potential future deals.
  • Proceedings can be kept confidential. Parties can, to a significant degree, maintain confidentiality of the discussions and outcomes through mediation. The many players in the global art market often have a working knowledge of one another, and reputation is essential. Therefore, confidential dispute resolution may enable them to resolve conflicts more covertly. Furthermore, discretion may be essential while dealing with holy or traditional material. Depending on the situation, parties might also decide to strike a balance between confidentiality clauses and demands of public interest.

The role of ADR and mediation process in art disputes is growing. The WIPO and the International Council of Museums (ICOM) have established a not-for-profit mediation service — the WIPO-ICOM Art & Cultural Heritage Mediation project where parties can choose an impartial art-expert mediator from WIPO’s lists and are guided by the WIPO-ICOM Mediation Rules. UNESCO also offers a mediation service. The key focus of this program is the return of looted cultural property to its country of origin or its restitution in case of illicit appropriation of art.

The success of mediation in resolving art disputes has been commendable. For example, in 2015, the Milan Chamber of Arbitration (CAM) created ADR Arte — a project aimed at solving art disputes through mediation. Between 2015 and 2017, ADR Arte handled 32 art mediations involving a broad spectrum of issues, with a high rate of effectiveness. Whenever the parties made the choice to continue with the mediation process after the first session, over three-quarters then went on to reach a final settlement.

Looking at this trend, mediation has opened the door for even the small artist or impoverished community to come forward and reclaim their art and cultural heritage to which they are emotionally and spiritually attached.

Photo by Václav Pluhař on Unsplash