This article is taken from Paul Howcroft’s blog Art Law London.
Earlier this year, my firm co-hosted a seminar with the Chartered Institute of Arbitrators, on the resolution of art disputes. I shared the platform with Henry Legge QC, a leading art barrister, and Sarah Charles of Christie’s. It was a great success and there was clearly a lot of interest in the mediation of art disputes, both from the professionals and the market players in the audience.
Mediation is a process to achieve a settlement of a dispute, as an alternative to bringing court proceedings or to continuing them. It usually involves a day with an independent mediator who meets with the parties, sometimes together, sometimes separately, and applies all sorts of skilful means to get the parties into negotiation, usually via the mediator, with a view to getting them to reach a settlement. Success rates are remarkably high for parties who have a will to settle, even if they begin the day a long way apart and would not otherwise be expected to reach agreement.
The mediation process is confidential and, in my experience, confidentiality is particularly important to most parties to art disputes. For example, professionals are concerned about reputation, and collectors or investors would rather not advertise their art dealing, which might invite unwelcome attention. Also, known disputes about attribution and provenance will seriously damage the goods, whatever the outcome. On the other hand, there will always be some parties who crave the publicity of a trial for tactical or principled reasons, which might also encourage the other party to settle.
There are some good mediators who have experience of art disputes, and Charles Middleton-Smith is a leading example. Having an understanding of art law, the art world and the particular priorities of the disputing parties is a great advantage in gaining the parties’ trust and drawing them together.
Mediation processes can also be useful for disputes between institutions, and the International Committee of Museums has a mediation scheme. International Nazi looted or forced sale claims and cultural heritage claims can also be better resolved through mediation because of its greater flexibility.
What I learnt from the seminar is how much good work the big auction houses do in mediating when claims arise between innocent sellers or buyers of art and the victims of earlier theft of that art, where sadly the the latter have less rights than they expect.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)