During the Institute of Art & Law Training Day today I had the opportunity to speak to a leading UK Law Professor who confirmed that ‘Negotiation’ theory & practice is not taught to Law undergraduates in the UK. In her University, she runs two modules about negotiation for postgraduates. She is from Canada, where apparently ‘negotiation’ forms an integral part of a law undergraduate’s formal education. When she came here she was shocked to find what I have been saying for months on LinkedIn, i.e. that ‘Dispute Resolution Negotiation Theory & Practice’, including ‘Mediation Advocacy’ is not taught to law undergraduates in the UK.

What I also discovered today is the enormous space that exists for specialised training to be provided about the ‘Mediation of Art Disputes’ and ‘Mediation Advocacy’ in these disputes. As far as I am aware nobody is providing this niche training to mediators and mediation advocates. So, there is a huge gap in the market for these courses.

I also had the opportunity to ask a speaker about how in the mediation of a ‘misattribution’ claim, the true value of the disputed artwork can be determined to the satisfaction of the art market, i.e. because the underlying methodology for arriving at and agreeing upon the value is unknown to the market. One speaker acknowledged the problem. Another opined this was not a problem in the primary art market. Mediation is popular in these disputes, as discussed by Anne Laure Bandle in her leading textbook for Art Law practitioners – ‘The Sale of Misattributed Artworks And Antiques At Auction.’ I wonder if the solution is a hybrid process of expert determination and mediation?

An original idea also occurred to me during another excellent talk given by Lauren Gowler. It is this – ‘Can crowdfunding be used to raise funds for mediation in a campaign for the repatriation of ancient art, i.e. Mediation Crowd Funding?’

Is there a precedent?

I recently read ‘Negotiation – Things Corporate Counsel Need to Know but Were Not Taught’, by Michael Leathes. He posits that mediation can be used to facilitate the negotiation of contracts. I vividly recall when this would have been helpful in overcoming deadlock in the negotiation of a power project contract about how sensibly the risk of a latent defect could be shouldered. In my article – ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning. Taxation (Tolley) I also argued for mediation in lifetime planning. So, I asked a speaker whether mediation is used in the US to facilitate expansion of the commercial pie during the negotiation of artist contracts. It isn’t.

You know when speakers are good because the day passes fast. 7 hours today went by in a flash. So, my personal thanks as a delegate to IAL’s and to all of the speakers for their excellent presentations and for allowing me to pose so many questions!