Art is probably as versatile as the human nature itself. 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 pure legal issues which are at stake, but also frequently there are moral cultural, historical, diplomatic and spiritual considerations involved. To note, that even legal issues related to art are generally fairly complex, provided the lack of uniform legal norms. Frequently art-related disputes are cross-border. Sometimes art-related disputes are a direct consequence of certain historical events (which might also still require legal appraisal themselves). 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 doesn’t. And if it does, it becomes a weird installation.
In this small article I would like to sketch an alternative way and pose some questions for reflection and further discussion.
As the title implies, we will talk about mediation.
About mediation in brief
First, briefly on mediation as such. Mediation is an approach to conflict resolution whereby a neutral third party assists the conflicting parties to reach an agreement that both parties feel is fair. Mediator doesn’t decide for the parties and is totally neutral. What is important is that mediation is focused on needs, perceptions, assumptions, mythology, concerns, beliefs, values and fears. It is the process where not only plain legal facts have an impact, but also emotions and cultural influences are equally to be taken into account.
In other words, contrary to a court process or arbitration performed under strict law, mediation provides means of conflict resolution by which also other factors can be brought into account. Yet, it doesn’t stop there.
Mediation and art-related disputes
Mediation provides not only for the possibility to take different factors into account when coming up with the solution, but also allows quite some 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*, the solution served interests of all the parties involved in a fairly creative way. 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. The solution like that achieved much more that any court decision would have ever been able to achieve. This is 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. The solution allowed parties to save future relationships instead of focusing only on redressing the past wrongs.
(*Note: strictly speaking this process was not mediation, yet on the essence it was pretty much akin)
In one of the most known art-related disputes settled by mediation, the three-day session solved what was a twenty-year old painful dispute. The case related to Tasmanian Human remains had not only pure property rights at stake, but also a clash between that and aboriginal cultural and spiritual beliefs. Ignoring the latter would have had a detrimental impact exceeding far beyond the conflict in question and possibly way into the diplomatic relations between countries. The case was solved and the solution once again was future-oriented and fostering relationships (inter alia — joint custody).
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 moulds of the respective parts of the Panel of Tyche. That allowed both sides to be able to present the work in its entirety, in the end benefiting many more people than just those involved in the dispute.
Those were examples of the prominent cases which hit the news. Provided the secretive nature of mediation it would be safe to assume that many more cases already benefited from it without necessarily being known to the general public. And here I come to the problems related to mediation in art related disputes.
Problems with mediation
Thus, mediation offers flexibility, creativity and numerous options otherwise unavailable to the parties. It solves long-standing disputes in practically no time, saves money, saves or even enhances relationships. 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 secretive nature of mediation in this sense contributes to a collision between private interests and interests of a general public. To give you an example: consider the dispute between Norton Simon and the Government of India. In the case in question 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 possible solution, one might question whether this solution would benefit 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, the resolution is still not guaranteed (like in Canon Tables of the Zeyt’un Gospels mediation in 2012 failed and settlement asked for another three years). Therefore, this nuance cannot be forgotten.
(*Note: but it is fair to note that this is applicable to any other dispute considered in mediation and not only to art-related ones.)
Finally, success of mediation is a combination of numerous factors. Amongst these factors is the willingness of parties to actively participate 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 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 indeed 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, as well as the choice of a mediator warrants special care and attention.
Maria Boicova-Wynants, European Mediator in cross-border civil and commercial disputes, qualified Patent and Trademark attorney
specially for artlaw.online