The following is an extract from the introduction to my essay ‘Mediation of Cultural Property Disputes’ on the ‘Cultural Property & International Humanitarian Law’ page at www.carlislam.co.uk:-
Cultural property disputes are multifaceted, legally complex, often involve multiple stakeholders – so, a wide range of interests and underlying dynamics are in play, and can be multi-jurisdictional. ‘The handing back of property to the original possessor or owner is known variously as restitution, return, and repatriation … are treated differently in law, with some covered by private law instruments and others by public law. … [Points] of convergence can be seen where there are no legal means of claiming restitution, either because the passage of time or because there has been no unlawful act. It can also happen that, once outside the state territory, there may be limits to the protection afforded to a disputed item of property under public law, even where international conventions apply, as these are sometimes unenforceable..’ (Cornu, Marie & Marc-Andre Renold ‘New developments in the restitution of cultural property: alternative means of dispute resolution’ , 17 Intnl J. Cultural Prop.1 (2010) pp.1-2).’ The result is limbo. A further legal impediment, is that museum trustees cannot voluntarily dispose of artefacts in a museum’s collection, whatever the merits of a moral/ethical case for repatriation, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law..’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3). Mediation can result in a break-through, because it enables ‘parties in dispute’ to become ‘collaborators’ in a process of exploring the existence of terms of a deal, whereby a ‘third-way’ can be jointly-developed, which is sufficient, i.e. ‘enough’ to satisfy their primary needs, resulting in a ‘convergence’ of interests, trust, goodwill, and a mutually acceptable agreement about ‘what is the right thing to do. In this essay, I seek to answer the following questions within the context of non-institutional mediation of a cultural property dispute:
·       What is Mediation.
·       What are the benefits.
·       How does the process work – i.e. what are the key terms of the ‘Mediation Agreement’.
·       What are the challenges for a Mediator.
·       Where is the deal-making zone (‘DMZ’).
·       What is the Mediator’s methodology.’