Mediation in Art Authentication & Misattribution disputes

ADR may result in a better outcome all round because:
·       Judges generally lack connoisseurship in the field of art and art auction sales.
·       It is necessary to determine authenticity in order to prove and quantify loss.
·       This requires a reconstruction of the authentication process.
·       When deciding whether an attribution is accurate, or whether the auction house was diligent, courts use a preponderance standard.
·       In deciding questions of art authenticity judges rely on expert evidence, but do not have the requisite skill and knowledge to evaluate and critically assess such evidence. ‘Judicial conviction is based on expertise, experience of life and knowledge of human nature as well as intuition and feelings. Therefore, judges like experts, can determine authenticity based on rational considerations to only some extent. Furthermore, judges endorse the experts’ approach of judgement by eye. Such an approach is out of the judge’s competence.’ (‘The Sale Of Misattributed Artworks And Antiques At Auction’, by Anne Laure Bandle (2016), Edward Elgar, p.292).   
·       Consequently, ‘a judge’s lack of connoisseurship can result in decisions that do not assess the authenticity of the given art object, but rather the merits of their respective experts, both by considering the strength of their reputation and expertise and their performance in cross-examination. Thus, it may occur that instead of rendering a judgement based on the experts’ arguments substantiating a specific attribution, the judge decides that the specific expert is more eminent and established and therefore that expert’s attribution prevails. … The courts’ approach in attribution disputes can encounter incomprehension not only by the parties directly involved in the case, but also by the art market. … Overall, in authentication at court, the problem arises that judges do not understand the complexities associated with attribution in the art market.’ (‘The Sale Of Misattributed Artworks And Antiques At Auction’, by Anne Laure Bandle (2016), Edward Elgar, p.295).
·       Where the Mediation is structured as a co-mediation involving e.g. an art historian as an ’expert facilitator’ [‘E’], the Co-Mediators can help the participants obtain a more subjective appreciation of the merits and commercial value of their respective positions, because E knows how to interpret art expert evidence in light of art historical methodology and market rules, whereas in deciding whether the burden of proof has been discharged, a judge must apply the CPR, i.e. the procedural rules of the court.
See my essay, ‘Mediating Authenticity & Misattribution Claims’ on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk.