The Suitability of Mediation to Resolve Disputes over Cultural Property

Description

The flexibility and attractiveness derived from applying the mediation process to resolve complex disputes has compelled UNCITRAL to recently adopt the Singapore Convention on Mediation (2019) and the 2018 Model Law on Mediation. The mediation process facilitates the derivation of an amicable compromise between disputing parties, which should, in theory, lead to win-win outcomes. This proposed paper would undertake a critical examination of how the mediation process may be suitable (or unsuitable) for the resolution of complex and controversial disputes over ownership of cultural property. It is accepted that mediation may not work if the disputing parties are unwilling to compromise to the bitter end (noting the reality that the ownership of cultural property may evoke the most passionate feelings in individuals and society over ‘priceless’ historical artefacts, or items of substantial sentimental (but intangible) value), or if there are clear and insurmountable power imbalances present between the parties in dispute (e.g., between a State-owned entity and a private collector). However, once these thorny obstacles are overcome (or accepted) by the parties in dispute, the benefits brought about through mediation – e.g., cost savings, flexibility in framing compromises, the therapeutic effect flowing from being ‘heard’ at the mediation table, and more – would naturally outweigh the challenges. Finally, this paper considers how mediated settlement outcomes, resolving cultural property disputes, may be enforced domestically and across borders. A part of this section must be dedicated to considering how these settlement outcomes may be enforced under the Singapore Convention on Mediation, which has been signed by 55 countries (and ratified by 8) at the time of writing.

Period	28 Mar 2022
Event title	Due Diligence, Digital Databases, and Cultural Property Law & Policy: Atara Kaufman Conference on Law, Art, and Cultural Heritage
Event type	Conference
Location	Tel Aviv, IsraelShow on map
Degree of Recognition	International