The Art of Mediation — Resolving Art Law and Cultural Property Disputes
The Copyright Alternative in Small-Claims Enforcement (CASE) Act, which is currently under consideration in the U.S., proposes a mediation mechanism for resolving relatively minor instances of copyright infringement. The proposed legislation is but one example of alternative dispute resolution (ADR) mechanisms being proffered as a means to improve access to justice, in this case for artists. The public, costly and often stressful reality of resolving disputes in the courts has helped to make mediation attractive to a wide range of stakeholders within the art market.
Art Law
Art law disputes are as varied as the artworks to which they relate. Art law is generally taken to encompass elements of copyright, artists’ moral and/or resale rights, fraud, tax, customs, contracts, and property law. The range of stakeholders is equally extensive, with people partaking in areas as diverse as insurance, authentication, auctions, museums, collecting, and marketing. This burgeoning field of law bodes characteristics that make it particularly amenable to ADR, and mediation in particular. The complicated issues which colour the art and cultural heritage legal landscape have two principal sources: the broad range of stakeholders; and the uniquely sensitive subject matter. This sensitivity arises out of the complex legal issues that can become intertwined with questions of culture, history, commerce, politics, ethics and religion. Although litigation may be favoured in cases for which a legal precedent is sought, or in which parties are uncooperative, there are many art law disputes for which mediation could facilitate the optimal solution.
Why mediation?
Some of the key advantages of mediation, relative to litigation and arbitration, are of particular value to art law and cultural heritage disputes. They include:
Cost: mediation can be considerably less costly, with fees commonly shared between the parties. The resolution of art litigation is often hampered by competing forms of expert evidence, which in turn causes costs to skyrocket. This issue can be addressed head on by the mediator so as to extend the range of avenues open to settlement. Avoiding heavy expenditure on litigation is especially attractive for cultural institutions who already struggle with limited budgets.
Control and Flexibility: the parties retain control over the process and can tailor the mediation to the dispute. The continuous consultation between the parties in mediation helps to inject a dosage of reality, sensitising them to the relative strengths and weaknesses of their cases. This helps to cultivate a more co-operative approach than the adversarial positions taken in litigation and arbitration. As such, parties can better preserve their relationships and reputations within the art market. Mediation can also avoid the conflict of laws issues that sometimes complicate cultural property disputes due to their cross-border nature and the fact that legislation in the area is not fully harmonised.
Interest-focused: unlike litigation which strictly concentrates on legal rights and legal remedies, mediation is broader and allows the parties to address their interests and needs. The mediator can accommodate other sensitive, non-legal issues within the process, such as customary laws and personal, commercial, moral or ethical considerations. The immaterial value of an artwork is often intrinsically linked with its monetary value. For example, an artwork purchased for millions of pounds can become ‘worthless’ if it is refused inclusion in a catalogue raisonné.
Privacy: the mediation process is confidential and without prejudice, meaning that nothing mentioned in the mediation can be referred to or disclosed in court proceedings. The public nature of court proceedings contrasts starkly with the privacy that often veils the acquisition and possession of art. This penchant for secrecy is not always without good reason. Mere doubt as to the authenticity of an artwork or a suspicion that it may be stolen is sufficient to decimate the artwork’s value as well as the reputations of those involved; this is irrespective of the court’s final ruling. It is therefore unsurprising that major auction houses require disputes between buyers and the auctioneers to be resolved using ADR. Christie’s, for example, states in their terms and conditions that the matter must be brought to mediation, and failing that, the parties can resort to arbitration. The discrete nature of mediation is clearly advantageous to art market participants.
In an industry that thrives on creativity, mediation has proven itself capable of achieving suitably creative solutions. Art-related disputes are particularly rich for negotiating mutual gain because they involve tangible and intangible concerns, both in the short and long term. In the Australian ‘carpet case’, for example, industrial carpet manufacturers reproduced works of indigenous artists without their authorisation. The case was uniquely sensitive because the artworks incorporated imagery that belonged to the artists’ community. As a result, the artists faced communal sanctions under customary law for inappropriate third party use of the traditional images because the carpet company had altered them. A moral issue also arose because the carpets did not reproduce the artworks in their integrity. A court, with limited and mostly financial remedies at its discretion, could not have resolved this dispute in a way that fully addressed the more sensitive cultural and moral conflicts. Some innovative mediated solutions to art and cultural asset disputes have included long-term loans of works of art, restitution, donations, the provision of works of art in exchange for monetary damages, and the agreement of specific ownership arrangements such as shared ownership or custodianship. In these ways, mediation can give effect to the parties’ conflicting, yet legitimate interests without needing to decide in terms of ‘right’ and ‘wrong’.
For example, a dispute arose between the Swiss Association of Museums and a copyright collective over the interpretation of Article 26 of the Swiss Copyright Act, which provides an exemption from copyright for particular types of art catalogues. The issue in question was whether catalogues of travelling exhibitions that give the public access to works from different private collections fall within the copyright exemption. The potential for mutual gain was realised through identifying the underlying interests of the parties in mediation. By capping the size of the catalogue edition and restricting its sale to not-for-profit art museums during the time period of the exhibition, the encroachment on the artist’s copyright could be balanced against the benefit to the public, and potential increase in the artist’s reputation. As such, mediation facilitated a solution that differentiated catalogues aimed at promoting exhibitions from those akin to books sold for commercial exploitation.
Designing ADR for the art world
The Geneva Art Law Centre plays an important role in maintaining ArThemis, a database of art and cultural heritage disputes resolved using ADR. Recording the outcomes of these mediations, and other ADR mechanisms, has provided a means to compare and categorise art law claims. The initiative answers a need for art expertise and know-how within art law and cultural heritage disputes, the type of which does not typically exist within the traditional justice system.
It was this lacuna of art industry expertise - which some courts have noted in their judgments of art-related cases - that motivated the establishment of the Court of Arbitration for Art (CAfA). There are, and should be, difficulties in getting the art market and the parties to accept a court judgment on the authenticity of an artwork from a judge without relevant art expertise. The art law experience of CAfA arbitrators and mediators would help, in such a circumstance, to free the relevant artwork, to the greatest extent possible, from any uncertainty surrounding its legitimacy. This example, however, also highlights a possible limit on the usefulness of mediation in authentication disputes; in some cases, an ADR mechanism such as arbitration that can combine both an authoritative decision on a specific question of authenticity and art law expertise may be preferable.
Several trade organisations and regulatory bodies have also adopted ADR for resolving art law and cultural property disputes. For example, the World Intellectual Property Organisation (WIPO) and the International Council of Museums (ICOM) run a not-for-profit mediation service which allows parties to select an impartial, specialist art mediator from WIPO’s lists. UNESCO also offers its member states a mediation service through its Intergovernmental Committee for Promoting the Return of Cultural Property. The scheme centres on the repatriation of looted cultural property to its country of origin or its restitution in cases of illicit appropriation. The commercial drive for mediating art disputes is evidenced by ADR Arte, a project of the Milan Chamber of Arbitration, which regularly deals with disputes as broad as libel and the distribution of estates.
Conclusion
The interest-focused and flexible mediation process can provide the legal and technical expertise that the multi-specialist nature of art law requires. Whether the dispute involves an indigenous community and a museum, or a seller of an artwork and an auction house, mediation can facilitate tailored and expert solutions for art market participants without the expense or publicity of litigation.
Alice Munnelly, Accredited Civil & Commercial Mediator and Co-Chair of the Young Mediators’ Group ~