I would like to share an insight I had this morning about Mediation, which as a process, is about ‘doing a deal’ and requires a ‘Paradigm Shift.’

A ‘Paradigm Shift’ in effect requires the creation of a ‘New Paradigm’, for adoption by the warring parties, i.e. as a new ‘Lens’ through which to view the dispute, in order to discover common ground and settle.

‘Doctrine’ – See my previous post – ‘Creating a New Paradigm of Restitution in Cultural Heritage Disputes’: https://lnkd.in/eRNv8C93

As I wrote in the post in Cultural Heritage Disputes, there are two competing theories under International law, which are divergent:

(i)         ‘Cultural Nationalism’; and
(ii)        ‘Cultural Internationalism’.

‘Taxonomy’ – Different terms are used in the academic literature to classify Cultural Heritage Disputes.

‘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).’

So, essentially, these competing ‘paradigms’ are based upon:

(i)          ‘Title’ – which can be classified as being a ‘Restitution Paradigm’ based upon applicable ‘Property Law’ concepts; and

(ii)        ‘Cultural Patrimony’ – which can be classified as being a ‘Repatriation Paradigm’ based upon ‘Ethics.’

So, adopting this framework, the former can broadly be classified as being ‘Cultural Property’ claims, and the latter as ‘Patrimonial’ claims.

Understanding the ‘source’ of each party’s ‘Paradigm’ is the ‘starting point’ for the Mediator in a Cultural Heritage Dispute, as it enables him to ‘drill-down’ into the underlying ‘Legal’ and ‘Moral’ elements of the claim and ‘reality-test’ them, in order to facilitate the building of a ‘bridge’ between these divergent sets of principles (i.e. to bring about ‘Convergence’), through the agreement of a framework of applicable ‘Foundational Principles’, i.e. a ‘New Paradigm’ – which in my Monograph I shall refer to for convenience as being ‘Principles of Restitution’.

In a nutshell, the Methodology (i.e. ‘Dispute Resolution Road Map’) I have so far developed for the Mediation of Cultural Heritage Disputes entails:

·       1st Understand the ‘source’ of each party’s ‘Paradigm’ – NB in Mediation – ‘Legal Doctrine + Taxonomy = Paradigm.’
·       2nd – ‘Reality- Testing’.
·       3rd – ‘Creation of a New Paradigm’ – i.e. applicable ‘Principles of Restitution.’