Is Mediation a Good Choice for Art- Related Disputes?

Art is probably as versatile as human nature. There is rarely an art object that is plain and straightforward. Most of the times there are numerous layers, influences, interpretations, and perceptions. Conflicts, where art objects are involved, are, likewise, multifaceted. It is not only purely legal issues which are at stake. Frequently, there are also moral, cultural, historical, diplomatic and spiritual considerations involved. Even art-related legal issues alone are generally fairly complex because of the lack of uniform legal norms. Often art-related disputes are cross-border. Besides, sometimes art-related disputes are a direct consequence of certain historical events (which might also still lack legal appraisal). To drop in a metaphor, trying to solve art-related disputes in a national court of a particular country is like trying to squeeze a three-dimensional object into a two-dimensional frame hoping that it would somehow fit. The bottom line: it does not; and if it does, it becomes a weird installation.

In this sense, mediation might be an optimal choice, because it not only provides for the possibility to take different factors into account when coming up with the solution but also allows certain creativity as to the solution itself. For example, in the claim concerning the picture by Jan Griffier the Elder, View of Hamilton Court Palace before the Spoliation Advisory panel (which strictly speaking was not mediation, yet akin process in essence), the solution served interests of all the parties involved in a fairly creative way [1]. A commemorative plaque was put next to the painting in the Tate Gallery, which was honoring the need for recognition of the suffering of Holocaust victims. Additionally, there was an ex-gratia payment made to the family of the plaintiff. This solution achieved much more than any court decision would have been able to achieve, not only because the real interests of the parties at dispute were taken into consideration and even not only because the ultimate solution was beneficial and accepted by both parties. It allowed parties to save future relationships instead of focusing only on redressing the past wrongs.  

Mediation might equally be the fastest procedure, like in the case related to Tasmanian Human remains [2], the three-day session solved what was a twenty-year-old painful dispute. The complexity of this case was enhanced by the fact that not only pure property rights were at stake, but there was also a clash between property rights and aboriginal cultural and spiritual beliefs. Ignoring the latter would have had a detrimental impact exceeding far beyond the conflict in question, potentially even into the diplomatic sphere. The case was solved in mediation, whereas the complexity of the matter was embraced and the solution reached was future-oriented and fostering relationships (inter alia — joint custody of the remains).

Likewise, in Cincinnati Art Museum v. Jordan case over the Panel of Tyche, the solution embraced creativity available in the mediation process. Parties in dispute agreed to jointly exchange molds of the respective parts of the Panel of Tyche. That allowed both sides to be able to present the work in its entirety [3], in the end benefiting many more people than just those involved in the dispute. 

Thus, mediation appears to offer flexibility, creativity and numerous options otherwise unavailable to the parties. It may solve long-standing disputes relatively rapidly, compared to traditional litigation, save money, protect or even enhance relationships [4]. What can possibly go wrong?

To begin with, art does not belong solely to a private domain and public interests on many counts should also be considered. The nature of mediation in this sense contributes to a collision between the private interests and interests of a general public. A notable example of this is the dispute between Norton Simon and the Government of India [5]. In this case, parties agreed that with settling this particular dispute the government of India would abstain from taking any action against Mr. Simon in connection with any other Indian antiquity acquired by him outside India for the upcoming year. While from the private interests perspective this is a viable solution, one might question whether it would benefit the general public. 

Moreover, if mediation fails, information disclosed during the process cannot be further used in court. That might become a huge stumbling block for certain cases. Even though mediation has an outstanding success rate (see e.g. the results of The CEDR Mediation audit [6]), the resolution is still not guaranteed (like in Canon Tables of the Zeyt’un Gospels [7] mediation in 2012 failed at first, and settlement required another three years). 

Finally, the success of mediation is a combination of numerous factors. Amongst these factors is the willingness of parties to actively participate in the process and assume maximum responsibility for their ultimate agreement. Also, in art-related disputes, perhaps even more than in some other cases, the right mediator is essential to the success of the process. Formally it is up to the parties in mediation to bring in and solve all their issues. However, skills and the ability of a mediator to see the art-related dispute in all its versatility is crucial in order to duly assist this process.

To conclude, mediation and art might become a match made in heaven provided the inherent creativity of the mediation process and the possibilities to consider numerous interests involved from all different scopes and perspectives. Nonetheless, the solution has to be found to balance the private and public interests. In addition, the choice of a mediator warrants special care and attention.

Notes:

[1] The Right Honourable Sir David Hirst. Report of the Spoliation Advisory Panel in respect of a painting now in the possession of the Tate Gallery (London, The Stationery Office, 18 January 2001) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 427722/Report_of_the_Spoliation_Advisory_Panel_in_respect_of_a_painting_now_in_the_possession_of_the_Tate_Gallery.pdf> accessed 17 March 2018
[2] Anne Laure Bandle, Alessandro Chechi, Marc-André Renold, “Case 17 Tasmanian Human Remains – Tasmanian Aboriginal Centre and Natural History Museum London,” Platform ArThemis <http://unige.ch/art-adr> accessed 17 March 2018
[3] UNESCO. Cases of return and restitution under the aegis of the Intergovernmental Committee. <http://www.unesco.org/new/en/culture/themes/restitution-of-cultural-property/committes-successful-restitutions/> accessed 17 March 2018
[4] Todd B. Carver, Albert A.Vondra, Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does (Harvard Business Review, May-June 1994) <https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-
why-it-does> accessed 17 March 2017
[5] Alessandro Chechi, Anne Laure Bandle, Marc-Andre[3] UNESCO. Cases of return and restitution under the aegis of the Intergovernmental Committee. <http://www.unesco.org/new/en/culture/themes/restitution-of-cultural-property/committes-successful-restitutions/> accessed 17 March 2018[4] Todd B. Carver, Albert A.Vondra, Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does (Harvard Business Review, May-June 1994) <https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does> accessed 17 March 2017[5] Alessandro Chechi, Anne Laure Bandle, Marc-André Renold, “Case Nataraja Idol – India and the Norton Simon Foundation,” Platform ArThemis <http://unige.ch/art-adr> accessed 17 March 2018
[6] Warren King, “UK: Mediation: Success or Failure?” (30 October 2017) <http://www.mondaq.com/uk/x/641140/Arbitration+Dispute+Resolution/Mediatio
n+success+or+failure> accessed 17 March 2018
[7] Nare G. Aleksanyan, Morgan Drake, Marc-André Renold, “Canon Tables – Western Prelacy of the Armenian Apostolic Church of America and J. Paul Getty Museum,” Platform ArThemis <http://unige.ch/art-adr> accessed 17 March 2018[6] Warren King, “UK: Mediation: Success or Failure?” (30 October 2017) <http://www.mondaq.com/uk/x/641140/Arbitration+Dispute+Resolution/Mediation+success+or+failure> accessed 17 March 2018[7] Nare G. Aleksanyan, Morgan Drake, Marc-André Renold, “Canon Tables – Western Prelacy of the Armenian Apostolic Church of America and J. Paul Getty Museum,” Platform ArThemis <http://unige.ch/art-adr> accessed 17 March 2018

Disclaimer: First version of this article was published at Artlaw online on 21 December 2016. The final version was published in the Newsletter of the Association for International Arbitration In Touch April 2018 edition.