Mediation of Cultural Heritage Disputes

I am currently writing a new book for publication in 2026/2027 entitled the ‘Mediation of Cultural Heritage Disputes’.

I set out below:

• The Draft Chapter Structure.
• The Research Bibliography.
• Speaking Notes for my Talk about the Mediation of Cultural Heritage Disputes to the SCMA on 11 November 2025.

I will be devloping an initial Book Proposal for submission before 25 December 2025 to a publisher for initial approval.

I am about half way through my research reading, which I am aiming to complete before 1 May 2026, with the aim of submitting a first complete draft of the book to a publisher in September/October 2026.

Draft Chapter Structure [30.10.2025].

Table of Cases.

Table of International Treaties. 

Table of Codes of Ethics & Ethical Guidance. 

Foreword. 

Chapter 1 – Introduction.

Chapter 2 – Mediation.

2.1 Benefits of Mediation.

2.2 Mediation Process & Stages.

2.3 Court ordered Mediation.

2.4 Choice & Appointment of Mediator.

2.5 Mediation Agreement – ‘Ground Rules’.

2.6 Ethical Codes governing the conduct of Mediations.

2.7 Recording binding terms of agreement.

Chapter 3 – Mediator Methodology & Tools.

3.1 Pre-Mediation Day Zoom Calls.

3.2 House-Keeping on the Mediation Day.

3.3 Starting the conversation.

3.4 Private Sessions.

3.5 Plenary Sessions.

Chapter 4 –  Mediation Parameters.

4.1 – ‘Existential Dimension’

4.2 – ‘Human Dimension.’

4.3 – ‘Legal Dimension.’

4.4  – ‘Ethical Dimension’.

4.5  – ‘Political Dimension’.

4.6 – ‘Object Dimension’.

4.7 – ‘Decision-Making Dimension.’

Chapter 5 – Ethical Principles of Restitution (‘EPR’).

Chapter 6 – Mediation Advocacy Methodology & Tools.

6.1    Game Theory in Mediation Advocacy.

6.2    1^st Things 1^st – Preparation Mindset & Managing Expectations.

6.3    Draw them towards you.

6.4    Build a working relationship with M and MA.2/P.2 from the outset

6.5    Do unto others as you would have them do unto you.

6.6    Do not have an argument with anyone about anything!

6.7    Do not retaliate i.e. react to any provocation.

6.8    Listen to understand in order to be understood.

6.9    Adopt an unconditionally constructive approach  – Treat each other as partners.

6.10    Initiate a principle-centred dialogue.

6.11  ‘Pareto Principle.’

6.12  Hidden Value.

6.13  Thinking ‘win-win-win!’

6.14  Isolate the constraint.

6.15  Interdependence paradigm.

6.16  Creating a ‘Special Relationship’.

Chapter 7 – Deal Structuring.

Practitioner Resources – Including a Mediation Check-List.

Practice Notes – To be contributed by Cultural Heritage Law Academics & Practitioners.

Endnotes.

Bibliography.

Further Reading.

Research Bibliography

[23.05.2025]

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My Speaking Notes

‘Mediation of Cultural Heritage Disputes.’

[02.11.2025]

Carl Islam, Barrister, SCMA Accredited Mediation Advocate & CMC Registered Mediator, 1 EC Barristers, London (1EC Barristers)

SPEAKING NOTES

• My Talk is divided into two parts:

Part 1 – Introduction & Overview.

Part 2 – Dimensions of A Cultural Heritage Dispute.

• The Notes of this Talk are available to view on the ‘Mediation of Cultural Heritage Disputes’ page at carlislam.co.uk.
• While today I am speaking about the Mediation of Cultural Heritage Disputes, you may find that the methodology and tools I describe are also capable of wider application in the Mediation of multi-dimensional:

(i)      Commercial Disputes; and

(ii)     International Disputes between states.

PART 1 – INTRODUCTION TO THE MEDIATION OF CULTURAL HERITAGE DISPUTES

In this Part I will briefly discuss:

• Methodology.
• Classification & Terminology.
• Theories of Restitution.
• Cognitive Errors.
• My forthcoming book about the Mediation of Cultural Heritage Disputes.
• Benefits of Mediation in Cultural Heritage Disputes.

Methodology

• Before a Mediator can facilitate clear thinking and rational decision-making, his/her starting point is to become aware of and understand the Dynamic Forces at play in the dispute, which have shaped each Participant’s Paradigm, i.e. their psychology and position, about what is at stake in the dispute.
• Some commentators describe these Dynamic Forces as being ‘Parameters’ in Mediation.
• I analyse, and today will describe, each Dynamic Force as being a ‘Dimension’, i.e. a separate component of a dispute.
• Cultural Heritage Disputes are both:

(i)      multi-dimensional’; and

(ii)     ‘inter-cultural’.

• So, the starting point for parties in dispute who wish to enter into Mediation, is to appoint:

(i)      a Mediator – who is capable of understanding the multi-disciplinary dynamic forces at play in the dispute, i.e. the various Dimensions of the Dispute; and

(ii)     Mediation Advocates – who have the knowledge and skill set to work constructively with their counterparts:

• In exploring the potential existence of common ground based upon interests: and
• in imagining and crafting mutually satisfactory terms of compromise.
• In the Mediation of any dispute, transformation can occur where the Participants choose to focus on the future, by putting the past behind them.
• In the Mediation of a Cultural Heritage Dispute, this involves the creation of what I call – a ‘New Paradigms of Restitution.’
• So, how to bring about the joint creation of a New Paradigm of Restitution, is the fundamental challenge that confronts the Mediator in a Cultural Heritage Dispute.
• Triumph in mediation, in overcoming this challenge, depends upon the interaction that takes place during the process between the Mediator, the Participants and their Mediation Advocates.
• To demonstrate how a Mediator can facilitate a paradigm shift in a Cultural Heritage Dispute, i.e.by bringing about the joint creation by the Participants themselves, of a New Paradigm of Restitution, I have created a Model of Mediation in the form of a two-dimensional Diagram.
• The Diagram is not in my Notes, so you may wish to draw it for yourselves.
• I call this Model the – ‘Philosopher’s Stone of Mediation’, because:

(i)      In the ancient practice of Alchemy, the Philosopher’s Stone symbolised a process of transformation; and

(ii)      as a Model of Mediation, the Diagram shows how a Mediator can transform conflict into partnership in a multidimensional dispute.

• In other words, at an elemental level, the diagram contains a Methodology, which shows how Mediation can work in a multidimensional dispute such as a Cultural Heritage Dispute.

[HOLD UP MY DIAGRAM]

• So, how does this Methodology work?
• Let me demonstrate.
• The ‘Green Triangle’ represents the highway of dynamic interaction between the Mediator, Participants and their Mediation Advocates throughout the Mediation Process.
• The sides of the triangle, represent dialogue which takes place between the Mediator in each Participant separately in private sessions
• The base represents dialogue which takes place between the Participants, which is facilitated by the Mediator in Plenary Sessions.
• Inside the Triangle is where the ‘process of ‘transformation’ actually takes place.
• That is where a ‘Paradigm shift’ can occur, i.e. be facilitated by the Mediator
• Since the Triangle is the vehicle for facilitating a Paradigm Shift in Mediation, I call it the ‘Triangle of Transformation.’
• The ‘Purple Circle’ connects the Triangle to each Dimensione. component of a Participant’s invisible Paradigm.
• I call it the ‘Circle of Influence’ because the Mediator can use the Circle to enter every Dimension of a dispute, in order to analyse and understand it.
• That is because the Circle is surrounded by Rings.
• The Rings represent the ‘Dimensions’ of a dispute.
• The Diagram only shows one Ring, which is by an ‘Orange semi-circle.’
• In Cultural Heritage Disputes – I have identified 7 Dimensions – i.e. Rings – which I will discuss in Part 2 of my Talk today.
• By using the Circle to step outside the Triangle and into each Dimension a Mediator can enter into the inner world of every component of a Participant’s Paradigm.
• That is because, when inside each Dimension, the Mediator can see each Participant’s Paradigm as they do, i.e. through their own eyes.
• Then by stepping back into the Triangle, i.e. during Private Sessions, a Mediator can use the ‘3 R’s – Reflect; Reality-Test and Reframe’, to steer a Participant and their Mediation Advocate:
  (i) Away from a binary ‘pre-conception’ based upon ‘rights’ and ‘power’, i.e. that in order to ‘optimise gains’ and ‘minimise losses’, they must fight and win; and

(ii)     Toward a ‘conception’ that what is of primary value and importance is their ‘interests’, which can be optimised instead of conflict, by working together with the other Participant and their Mediation Advocate, as partners, in joint and creative problem-solving – facilitated by the Mediator.

• Thereby a Mediator can facilitate a ‘Paradigm Shift.‘
• So, the Tool that a Mediator uses in the Philosopher’s Stone of Mediation to transform conflict into partnership, is enabling each Participant to reframe their dispute as being an opportunity, which counter-intuitively – can be maximised through cooperation.
• Because the Circle is in effect a highway along which a Mediator can travel in order facilitate a Paradigm Shift, I call it the Circle of Influence.
• Using the 3 R’s involves:
• Sincere and patient listening with empathy, i.e. so that each Participant knows that they have been heard.
• ‘Reality-Testing’ the assumptions and beliefs underlying each Participant Paradigm, i.e. by – with their permission, playing Devils’ Advocate, thereby enabling each Participant to become self-aware about the existence of any Cognitive Errors which may have distorted their Paradigm.
• ‘Reframing’ an apparent constraint, which may have been based upon a Cognitive Error, as being an Opportunity – instead of an obstacle.
• So, in summary:

(i)    The starting point for a Mediator is to understand each Participant’s Paradigm, because that will reveal how it can be transformed.

(ii)    The Mediator must enter each Dimension of a dispute in order both holistically, and at a granular level, to analyze and understand each Participants’ Paradigm, i.e. by seeing it as they do, i.e. through their eyes.

(iii)   The Circle of Influence then enables the Mediator to transform each Participant’s Paradigm, by steering the dialogue away from ‘rights’ and ‘power’, by focussing instead on ‘interests.’

Classification & Terminology

• This is relevant, because what you call something can influence how you think and feel about it, and thus its subjective value, significance and relative importance to you.
• Cultural Heritage is the intellectual, artistic, social, and historical record of mankind, which in the case of Tangible Cultural Heritage, is manifest in physical objects that have been created or produced by our species.
• I refer interchangeably to these objects, which includes ancient books and manuscripts, as being either ‘Artefacts’ or Antiquities.’
• Cultural Heritage is also intangible, including ‘traditional knowledge’, for example – tribal/indigenous knowhow about medicinal plants, and music.
• Intangible Cultural Heritage is linked to:

(i)      commercial confidentiality;

(ii)      Intellectual Property Rights in Cultural Heritage; and

(iii)     Performers’ Rights,

and is outside the scope of my talk today, but will be discussed in my book.

• Cultural Heritage is of crucial importance to individuals and communities, because it forms part of their identity.
• In other words Cultural Heritage is inextricably linked to ‘Cultural identity.’
• While some commentators describe these claims as being ‘Cultural Property Disputes’, as Professor Irini Stamatoudi states in her article – ‘Alternative Dispute Resolution and Insights on Cases of Greek Cultural Property’ – and I quote: 

‘Only a few individuals would disagree with the fact that “cultural property” is not just about property. It carries with it values and sensitivities on the objects themselves, their place in time and history, their linked territories and countries, their symbolism, functions, and role in relation to the context in which they originally belonged.’

• I therefore prefer to describe claims for the return i.e. Restitution of Artefacts and Antiquities as being ‘Cultural Heritage Disputes’.
• These claims arise in a multiplicity of different circumstances, which include:

(i)      plunder during war;

(ii)     acquisition and appropriation during a period of colonial domination;

(iii)     export in breach of a State’s ‘Patrimonial’ laws, which vest ownership of certain Artefacts found within their borders in that State; and

(iv)    acquisition as a result of the Illicit Trade in Antiquities, i.e.by theft, looting from archaeological sites, and smuggling.  

• Globally, private collectors and museums end up acquiring stolen Artefacts and Antiquities through the legitimate Art and Antiquities Market.
• The UK,US, France, and Germany are the biggest Art and Antiquities Markets for illicitly acquired Artefacts and Antiquities, and are known as ‘Market States’/’Importing Countries’.
• As the following quotations illustrate, driven by factors which include:

(i)      conflict;

(ii)      a rise in looting;

(iii)     the insatiable appetite of wealthy private collectors; and

(iv)    the use of trafficking to fund criminal activities – including drugs and terrorism,

the scale of the global illicit market in the plunder and sale of Artefacts and Antiquities, has become industrial.

• The scale of this criminal activity is relevant, because where the Participants in Mediation are state actors, they share a common interest in discouraging the tradee. by undermining market demand for stolen artefacts and antiquities.
• The following examples highlight the scale, and consequences of the illicit trade in Artefacts and Antiquities:

(i)      in Mali for example, it is estimated that 45% of all archaeological sites have been looted. This is not just Mali’s loss – it is also Africa’s loss. That is because Mali was once a vast empire that spread its language, laws, and customs across the entire continent of Africa, and its traditions continue to influence global culture through music, storytelling, and art. The region’s unique blend of lifestyles, from trade and farming to music and dance, created a rich cultural identity that is a key part of Africa’s broader heritage, as well as ancient texts and intellectual history – from cities like Timbuktu, which contributed significantly to African and global knowledge.

(ii)     In Latin America looting is so prevalent that entire civilisations have been ripped from the earth and placed onto the international antiquities market before scholars even knew that they even existed.

(iii)     From Guatemala alone, it is estimated that looters smuggle up to 1000 ancient Artefacts each month.

(iv)    Some estimate that looting in Central America employs several million people.

(v)     Traversing next to Central Asia – In the 3^rd Edition of her book – ‘The Return of Cultural Treasures’, Jeanette Greenfield, noted that for example – and I quote:

‘The Kabul Museum [in Afghanistan which] covered about 50,000 years of history and was one of the most important museums in Central Asia, [in only twenty years] lost three-quarters of its collections. [Including the] Bagram ivory [panels]. … It appears [that] most of the panels were smuggled out to London, New York and Tokyo. … ‘

The Bagram ivory panels consisted of over a thousand decorative plaques, figures, and inlays from the 1st or 2nd century BC, i.e. which were created over 4,000 years ago, that were discovered in Bagram.

Carved from ivory and bone, these luxury items were originally part of ornate wooden furniture.

They are significant for showcasing the high level of craftsmanship in the ancient world and the extensive trade networks, especially along the Silk Road which brought together diverse artistic styles from the Roman world and India.

To the impoverishment of us all, they are now lost.

(vi)    More recently, Leila Amineddoleh  in an article published in the Spring Edition this year of the Harvard Art Law Review, stated that between 9/10 (and according to another source 8/10) tombs across China have been plundered, and that in 2013, it was estimated that 100,000 looters operated in China, and more than 400,000 ancient graves have been robbed during the past few decades.

(vii)    As Nate Mealy stated in his article – ‘Mediation’s Potential Role in International Cultural Property Disputes’ -and I quote:

‘Some scholars persuasively argue that the majority of the world’s private and museum collections consist of looted goods because: (a) the majority of these collections contain unprovenanced pieces, and (b) if an object were excavated and exported legally or during a time before patrimony laws, logic dictates that there would be no reason to display it sans provenance.’

(viii)   In his book ‘The Settlement of International Cultural Heritage Disputes’ (2014), Professor Alessandro Chechi cites a quote from a representative of the Institute of Archaeology at University College London that – ‘It’s commonly accepted by those of us who work in the field that 80% to 90% of the material on the market is illegal.’

(ix)    He also cites Thomas Hoving, a former Director of the Metropolitan Museum in New York who reportedly said that,  ‘Almost every antiquity that has arrived in America in the past 20 years has broken the laws of the country from which it came.’

• Claims for Restitution involve a range of:

(i)      state;

(ii)     sub-state e.g. indigenous group;

(iii)     private law ‘actors’, and

(iv)    Other ‘stakeholders’.

• Where the recipient of a Restitution claim is a State Museum, then in addition to the Museum itself, there are other stakeholders, who either can or must be consulted, which in the UK include:

(i)      The Government – i.e. to  seek the advice of the Secretary of State for Culture via the Department for Culture, Media and Sport (‘DCMS’).

(ii)     Arts Council England – who produced ‘Restitution and Repatriation: A Practical Guide’, which was updated in September 2023, and who can provide practical advice about how to handle a claim.

(iii)     Donors – who may have attached conditions to a gift to the Museum which restrict return by deaccessioning, i.e. by loan, gift or sale.

(iv)    Public audiences – i.e. local communities and visitors to the Museum.

(v)     Academic institutions and scientists, i.e. carrying out research.

(vi)    Partner organisations.

(vii)    Sponsors.

(viii)   Funders.

• Claims for restitution brought by State Actors and Indigenous Groups are typically for the return of either:
• National Treasures; or
• Sacred Objects.
• As Marie Cornu and Marc-Andre Renold explain in their article – ‘New developments in the restitution of cultural property: alternative means of dispute resolution’ – and I quote:

‘[These claims] mainly relate to items considered to be inseparable from the country to which they belonged. The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Unlawful Appropriation chooses to focus its efforts on objects in this category. Claims may relate to objects with “a fundamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State” that were lost “as a result of colonial or foreign occupation or as a result of unlawful appropriation.” Their symbolic, sacred, or religious value or importance to the state of origin should in principle, command respect. The difficulty is nonetheless twofold: not only of expressing the original connection but also of identifying it. Does that link take precedence over all others? In reality, the equation is more complex. Relatively speaking, other interests, too, have a claim to legitimacy by virtue of the universal notion of heritage and the dissemination of cultural plurality, or the need to protect the heritage of mankind. Many museum collections have been established on the basis of this notion. The first questions to be resolved are whether or not the acquisition was lawful, and what effect this had on the principle of restitution or return.’

• A primary example of a claim for the return of a National Treasure, is the claim brought by Iceland against Denmark, for the return of the ‘Icelandic Manuscripts’:
• Originally written on vellum, i.e. calf skin, and later on paper, these Manuscripts represented Iceland’s great heritage of medieval prose and poetry, and symbolized Iceland’s ‘nationhood’ and ‘cultural identity’.
• Quoting from the 3rd edition Jeanette Greenfield’s book – ‘The Return of Cultural Treasures’  (2013):

‘To understand the great importance of the manuscripts to Iceland one must appreciate the history of enormous literary activity of that comparatively small country and the ultimate rarity of its medieval works … [As] the great Danish historian, Saxo Grammaticus, writing about 12OO in … Inopiam ingenio pensant [observed] … [the people of Iceland] “make up for their poverty by their wits”. … Later scholars and historians elaborated on this observation, taking the view that traditional Viking vigour and aspirations, pent up in the isolated island, found an outlet in memories, imagination and story-telling. Indeed the “bookishness” of the Icelanders, both in earlier and later centuries, came to be regarded as a national characteristic. … [The Saga Manuscripts] have been the roots and stock of Icelandic culture, the life-blood of the nation, the oldest living literature in Europe, enshrining the origins of Icelandic society. The sagas not only preserved the old language as a living tongue and a written language which is closer to modern Icelandic than Shakespeare is to modern English; they also helped keep alive the Icelanders through the worst centuries of natural disasters and colonial oppression.’

• One of the ancient manuscript treasures returned to Iceland in 1971 by the Royal Library in Copenhagen, is the ‘Flateyjarbok Codex,’ which is a compilation of sagas made in the north of Iceland in the 1390’s.
• A page from the Codex shows the start of the ‘Graenlendinga Saga’, which tells the story of the expedition of ‘Leif the Lucky’ to Vinland (North America), and of the ‘Norse’ discovery of the New World five hundred years before Columbus.
• A textbook example of claims brought by indigenous groups for the return of sacred objects – which often include claims for the return of human remains for ritual burial, is the ‘Willamette Meteorite’ – known as ‘Tomanowas’.
• ‘Tomanowas’ is sacred to the ‘Clackamas’ tribe from Grand Ronde reservation in Oregon.
• It is also the largest meteorite ever found in the United States and the sixth largest in the world.
• To the Clackamas the meteorite was sent by the Sky People and represented the union of sky, earth and water.
• It was an important tribal object and they wished to have traditional use of it.
• The tribe had been forced to abandon it upon being relocated in 1855. The meteorite is believed to be 10,000 years old, and is an important and unique scientific object.
• Eventually, a negotiated settlement was agreed between the museum and the tribe, whereby the sacred meteorite could be shared.
• It would remain as the centrepiece of the Rose Centre for Earth and Space in the New York Museum of Natural History, and the tribe would have annual ceremonial access to the museum and the meteorite.
• Thus, through a process of negotiation, the dispute about possession of this sacred and unique object was resolved in a manner whereby both ‘scientific study’, and ‘native rights’ were preserved and respected.

Theories of Restitution

• Two theories have shaped the Participants’ Paradigms in Cultural Heritage Disputes.
• First, in the frequently quoted words of the Preamble to the 1954 Hague Convention – Antiquities are ‘the cultural heritage of all mankind.’
• This idea that Antiquities belong to ‘all mankind’, has its philosophical root in the western liberal theory of ‘Cultural Property internationalism.’
• That doctrine is used by Museums, to justify the retention of Artefacts.
• The opposite theory, which is based upon the UNESCO Convention 1970, Article 2 and the Preamble, is that cultural objects belong within the boundaries of the ‘Source County/State of Origin.’
• This doctrine, which is used to support claims for restitution is called – ‘Cultural Nationalism.’

Cognitive Errors

• A Cognitive Error can distort a Participant’s Paradigm.
• A cognitive error is a failure to think clearlye. it is a routine barrier to logic.
• Rolf Dobelli describes multiple forms in his book, ‘The Art of Thinking Clearly’ (2014).
• If the Mediator and the Mediation Advocates understand the principles of ‘Cognitive error’, then they can save the Participants’ from themselves, thereby avoiding destructive behaviour which does not help the Participants to get what they each ‘need’, i.e. through facilitated negotiation in Mediation.
• The ‘Floodgates argument’ is a primary example of a Cognitive Error in Cultural Heritage Disputes.
• This holds, that returning cultural heritage would empty museums.
• The error is rooted in the ‘Pandora’s Box’  metaphor, which suggests that one small opening will lead to uncontrollable consequences.
• Most claims for return are historically unique, and there is no widespread plan to empty museums.
• Instead, such claims present an opportunity to rethink museum missions, as returning objects does not mean their disappearance from the world of museums.
• The core of the ‘floodgates’ argument is the idea that returning a few objects will necessarily open the door to a torrent of other claims, leading to a mass exodus of cultural artifacts from Western museums.
• This ‘fear of setting a precedent’, is a well-worn argument used to resist restitution.
• However, each case of restitution is historically unique, making it difficult to transpose one agreement to another.
• So, logically it does not follow, that restitution will create a precedent.
• In fact, the current practice of returns does not suggest that massive transfers are imminent, nor does it appear that is there a plan by requesting countries to ask for massive returns.
• The idea that museums would be ‘emptied’ is based upon a misinformed premise.
• Because, returning an object does not remove it from existence, but rather places the Artefact back in its original context, and community.

My forthcoming book

• In June I started to research a new book that I am writing about the ‘Mediation of Cultural Heritage Disputes’.
• Before briefly discussing Parameters in Mediation, I would like to say a few words about the book which have a bearing on my Talk today.
• Early on in my research I made the following discoveries:
• The published literature neither provides any detailed guidance about how Mediation works in Cultural Heritage Disputes; nor about Mediator and Mediation Advocacy Tools The absence of such a Handbook may be one of the reasons why the use of Mediation in these disputes appears to be low. So, this is a gap that I intend to fill, by writing a handbook for practitioners about the Mediation of Cultural Heritage Disputes.
• The effectiveness of Institutional forms of Mediation in Cultural Heritage Disputes, is in serious doubt.
• While in November 2008, at its 30th anniversary session in Seoul, the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or its Restitution in case of Illicit Appropriation (the ‘Committee’), added the functions of Mediation and Conciliation to the Committee’s mandate, only three cases are currently pending before the Committee.
• These are:

(i)      The Parthenon Sculptures’ case – Where the Committee has supported the idea of bilateral negotiations and has acknowledged the opening of the Acropolis Museum as a potential solution.

(ii)     The ‘Broken Hill Man Skull’ case – Where the Committee continues to urge the parties to find a mutually acceptable solution.

(iii)     The ‘Ife Bronze Head’ case – Where the Committee has welcomed the initiation of consultations on this matter.

So, the track record of achieving a ‘deal’ made in Mediation with the assistance of the Committee is zero.

• While in July 2011 the International Council of Museums (‘ICOM’) / World Intellectual Property Organization (‘WIPO’) Mediation for Art and Cultural Heritage disputes was launched, which was a  specialized program created through a partnership between the ICOM and the WIPO Arbitration and Mediation Centre to provide a more suitable alternative to litigation for resolving disputes related to Art and Cultural heritage, it appears that only three cases have been resolved using this process. These are:

(i)      Resolution of a dispute between a museum and an indigenous community over the restitution of a cultural object and related intellectual property concerns.

(ii)     Resolution of a dispute between the Swiss Cantons of St Gallen and Zurich about cultural assets seized during the 18th-century religious.

(iii)     The Makondé  Mask claim. However, while in 2010 ADR resulted in the donation of a Makondé Mask to the National Museum of Tanzania, it has not been confirmed whether this was as a result of ICOM/WIPO Mediation, or of using ICOM’s ‘Good Offices.’ ‘Good Offices’ is a form of ADR where the third party’s role is modest.

So, the track record of achieving a ‘deal’ made in ICOM-WIPO Mediation may be as low as one.

(c)     It is possible that Claimants who are former European Colonies, may not trust these forms of Institutional Mediation, fearing political interference by Market States.

(d)     There may also be a feeling amongst Claimants who are former colonies of Market States, that these international organisations are ‘patronizing’ them.

(e)     Mediation is also provided by the Court of Arbitration for Art (CAfA). The CAfA was established in 2018 by the Netherlands Institute of Arbitration and provides tailor-made rules and a panel of experts for resolving art-related disputes, including those involving Cultural Heritage. However, as far as I am aware, no mediated settlement agreements have been announced by the CAfA, in relation to Cultural Heritage Disputes.

(f)      On 30 May 2025, 33 countries – primarily from Asia, Africa, and Latin America – jointly signed the Convention  on the Establishment of the International Organization for Mediation (IOMed). Headquartered in Hong Kong, the stated objective and goal of ‘IOMed’, which was pioneered by China, is to promote and facilitate the peaceful settlement of international disputes, and to develop friendly relations and co-operation between countries through mediation. However, I am not aware of any Cultural Heritage Dispute having yet been Mediated using IOMed’ rules.

(g)     That leaves bespoke ‘Ad Hoc Mediation’ as the default method of resolving a Cultural Heritage Dispute using any form of Mediation.

• Face-to-Face Negotiation is the most common form of ADR in Cultural Heritage Disputes, whether Mediation is later attempted or not.
• So, in the book, I am aiming to answer two practical questions:
• 1st Q – When negotiations between the Claimant, i.e. a State/Indigenous People, and the recipient of the Claim, i.e. a Museum/Gallery, reach deadlock, which results in a state of limbo, how can a Mediator facilitate a breakthrough? i.e. what preparation does M need to undertake in order to assemble the Tools available for bringing about a convergence between the Participants competing and apparently irreconcilable positions?
• 2nd Q. – What Mediation Advocacy skills do those who are negotiating with each other through M, i.e. the Mediation Advocates, need, in order to transform conflict into cooperation through Mediation, i.e. by jointly- creating a ‘New Paradigm of Restitution’ (‘NPR’)?
• While empirical evidence of outcomes in past Mediations can inform M’s and P’s about what it has been possible to agree, because of the fact-sensitive nature of CH Disputes, no particular typology is to be found, so there is no Universal Blueprint for the Mediation of CH Disputes.
• As Art Council England state in their publication – ‘Restitution and Restitution: A Practical Guide for Museums in England’:

‘There is no such thing as a single, uniform process or set of procedures which constitute a “restitution blueprint.” Nor is there a single, defined goal or endpoint. Rather, responding to a restitution case requires you, the museum, to (re)consider your relationship with objects in your collection, their history, origins and acquisition – and most importantly, the people for whom they may have a special meaning today. Receiving a claim for restitution or Restitution can therefore be seen as an opportunity to learn and reflect, and to connect with people and the collection in new ways. Generally, the experience need not be defensive and adversarial, but can be collaborative and enriching. Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of “making mistakes” which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel.’

• Furthermore, Mediation as a method of ADR in CH Disputes is continuously evolving.
• So, nobody is an expert, and there is no one right or wrong way of Mediating a CH Dispute, and every M, and MA has their own distinct style, which in the experience of the author, is invariably a mixture of both facilitative and evaluative
• Thus, the methods described in the book are based upon my knowledge as an Art and Cultural Heritage Law Practitioner, and upon first principles of Mediation and Mediation Advocacy in bespoke Ad Hoc Mediation.

Benefits of Mediation

• As Professor Irini Stamatoudi states in her article – ‘Alternative Dispute Resolution and Insights on Cases of Greek Cultural Property’ and I quote:

‘The main benefit of mediation is that it is a very flexible procedure. It allows parties to submit wider claims that are of interest to them, following a procedure that is mutually acceptable. …

In mediation, other interests apart from the law are taken into account. These include ethics, codes of conduct, national policies, public feeling, and so on, which would not be taken into account if the law were to apply as the sole basis for the resolution of the case. Mediation permits alternatives that are not possible under law, such as exchanges of objects, loans, exhibitions, co-ownership, and other forms of cooperation. …

The fact that a considerable body of soft law has been developed in the field of cultural property restitution is another indication of the fact that the law seems inadequate to deal with these issues. Soft law starts transforming wider equitable principles into legal principles by practice and consistent application. These principles can easily be taken into account in ADR.

ADR has been encouraged by many national legal systems as well as by international law because on  most occasions it is cost-effective, flexible, can be conducted in a positive and friendly spirit, and helps towards the attainment of mutually acceptable solutions.’

• Nate Mealy further states in his article – ‘Mediation’s Potential Role in International Cultural Heritage Disputes’:

‘Mediation facilitates cross-party understandings better than any other form of dispute resolution. Because parties to a mediated dispute may freely choose whomever they want to conduct their mediation, they can select a third party who understands the cultural, political, religious, or social differences that limit their ability to effectively communicate, and therefore negotiate by themselves. This is particularly important in the cultural property world where disputant-stakeholder’s almost always come from different nations. Unless someone with cross-cultural understanding leads discussions, it is unlikely that parties with radically different expectations and cultural norms will ever permanently settle their disputes by themselves.’

‘[Mediation] encourages disputant-stakeholder’s-whether they be universal or local museums, source or market nations-to cooperatively negotiate mutually beneficial and highly creative agreements that respect every disputant-stakeholder’s interests. Such resolutions are imperative if we wish to put a stop to the near total embargoes that source nations have currently placed on international transmission of cultural property. This is particularly true in light of the facts that (1) current legal regimes governing the international transmission of cultural property, which operate largely on litigation basis and include the UNESCO Convention, have failed to adequately protect source nations and (2) more and more source nation cultural property slips out of their borders and into foreign hands on a daily basis. While disputed interests like state sovereignty, identity, and imperialistic perceptions that universal museums are the best at displaying cultural property are important to keep in mind, much more is at stake than source or market nation pride. At stake is knowledge itself. Unless disputant-stakeholder’s engage in a system which creatively encourages the equitable spread of cultural property – one which acknowledges the interests of all stakeholders – it is likely that the world will someday face a complete freeze on the exchange of newly discovered archaeological, artistic, and historically significant objects which inform who we are as a human race. At the end of the day, it is this tragedy, more than any other, that mediation helps overcome. This regardless of its voluntary nature, is why disputant-stakeholder’s must embrace mediation.’ (At page 215).

PART 2 – DIMENSIONS OF A CULTURAL HERITAGE DISPUTE

I have identified seven, which are:

• ‘The Human Dimension.’
• ‘The Existential Dimension.’
• ‘The Object Dimension’.
• ‘The Legal Dimension.’
• ‘The Ethical Dimension’.
• ‘The Political Dimension’.
• ‘The Decision-Making Dimension.’

These Dimensions are all dynamic and inter-connected.

‘Human Dimension’

• The values, significance and importance ascribed to an Artefact, which may be historic, scientific, educational, aesthetic, or financial, depend upon the subjective meanings placed upon it, by individuals and communities..
• The ‘human dimension’ of a Cultural Heritage Dispute describes the special feelings that an Artefact evokes because of its symbolic, emotional, religious, and historical qualities.
• As Professor Alessandro Chechi explains in his book – ‘The Settlement Of International Cultural Heritage Disputes’ (2014) and I quote:

‘… This human dimension is at stake in all cases, whether involving artworks taken by force or deceit or not … Cultural objects have no intrinsic value, in the sense that they cannot be defined solely by their physical characteristics. The values ascribed to them – be they historic, scientific, educational, aesthetic, or financial, depend on the meanings placed upon them by individuals and communities. It is precisely because of these meanings that works of art and antiquities attract the interest of museum-goers, institutions, States, and other stakeholders. For some, cultural objects are repositories of information relating to human history. Others regard them as possessing or expressing religious or spiritual qualities. For others, cultural objects are chattels that can be treated as any other commodity in financial terms. Heritage’s value is therefore relational. This explains why disputes involving cultural objects are both more likely to arise and more difficult to resolve than in the case of mundane goods. … ‘

‘Existential Dimension’

• Where the recipient of a claim for restitution is a Museum, this is linked to the Mission of the Museum and its Values as a Cultural Heritage Institution, i.e. the purposes for which it exists, and the people, whose interests it exists to serve.
• This in turn is linked to Museum Ethics and Best Practice in claims for restitution, which can affect funding, and popular support by visitors, i.e. the general public.
• Where the Artefact being claimed possesses a dual/hybrid cultural identity, then the Existential Dimension is also connected to the Human Dimension, i.e. because others feel that historically, the Artefact forms part of their cultural identity and heritage, i.e. that it belongs to them.
• For example, as James Cuno observes in his book – ‘Who Owns Antiquity? Museums And The Battle Over Our Ancient Heritage ’ (2008) and I quote:

‘[Are Antiquities] Italian because they derive from cultures said to have developed autonomously in the region of present-day Italy, or have we simply chosen to identify them that way? They look like things we know to have been made by ancient peoples in the region of what is now, some nearly 2000 years later, Italy. Of course, they also look like things made in Greece, which in turn looked like things made in Egypt, which themselves bear a resemblance to things made in the ancient near East. And then do we see resemblances to things made more or less at the same time in Persia, the Steppes of Russia, and Central Asia, not to mention across the Levant and northern Africa and up into Europe by way of the Balkans. And of course, too, each of these influences comprises currents of others, such that we can trace the identity of Italian works of art through a series of artistic and cultural encounters over much of the known world and over hundreds and hundreds of years.’

‘Object Dimension’

• The ‘object dimension’ is both:
• the tangibleand intangible aspects of an Artefact, which are inseparable and crucial to resolving the dispute; and
• the physical Artefact itself, which may have intrinsic value for archaeologists and historians.
• The intangible dimension encompasses the symbolic, spiritual, and historical values attached to the Artefact by a community, such as its role in identity, continuity of traditions, or rituals.
• Effectively resolving CH Disputes therefore requires acknowledging both the physical Artefact and the human, cultural significance it holds.
• The Object Dimension is also linked to the idea that where an Artefact originally comprised part of a public monument, i.e. was a fixture, that aesthetically, and in order to place the whole in its historical and cultural context, it needs to be reunited with the monument where it was erected.
• Paraphrasing Aristotle – that is because ‘the whole is more than the sum of just its parts.
• Sometimes, a Mediator may also be able to overcome an impasse in negotiations, by adopting a neutral object-centric approach.
• This involves framing a New Paradigm of Restitution in terms of what is best for the Artefact itself, based upon the following considerations:

-Which Participant can best preserve It.

-Which Participant can best glean the historical, scientific, cultural, and aesthetic truths from it.

-Which Participant can best grant the public access to it.

‘Legal Dimension’

• The Legal Dimension is the framework of legal duties, powers and discretions, within which a lawful decision can be made by a P about the terms of a deal for the restitution of an Artefact.
• Museum trustees cannot voluntarily dispose of an Artefact in the museum’s collections, whatever the merits of the moral/ethical case for Restitution, unless the disposal is lawful.
• As Sir Anthony Mason explains in his article – ‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’, and I quote:

‘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. …

The statutes governing museums and galleries impose restraints on disposal of objects in the institution’s collections. The statutory restraints imposed on national museums and galleries are, in general, more severe than the restraints imposed on other museums and galleries. The British Museum Act 1963 will serve as an example. Subsections (1) and (3) of section 3 requires the Museum to keep the objects comprised in its collections within its authorised repositories and, so far as appears to the Trustees practicable, to make them available for inspection when required. Section 5 enables the Trustees to dispose of objects vested in them but only in very limited circumstances, circumstances which do not extend to the satisfaction of a moral claim for return or repatriation. Consequently, disposal of an object forming part of the Museum’s collections simply for the purpose of satisfying a moral claim would be in breach of the Museum statute, unless authority for such a disposal could be obtained under the Charities Act, the Regulatory Reform Act 2001 or pursuant to statutory amendment.’

• Therefore, the critical question is whether the trustees have the power, i.e. a lawful right, to make a disposition of trust property.
• Furthermore, in the exercise of a power conferred on trustees to enable them to discharge their duties, they must exercise the power for the purpose for which it was given, i.e. to further the purposes of the trust.
• Another legal constraint , which is about whether a duty of restitution exists under International Law, is that since, the restitution of Artefacts removed during times of Colonial occupation is outside the scope of the UNESCO Convention, these claims can only be resolved through dialogue and negotiation, i.e. they cannot be litigated.
• Even where a claim can be litigated, as Irini Stamatoudi explains in her article – ‘Alternative Dispute Resolution and Insights on Cases of Greek Cultural Property’ – the litigation of Cultural Heritage Disputes is disadvantageous compared to Mediation, because, and I quote:

‘Resort to courts (that is, mostly national courts) necessarily means submission to rigid (national) law, which does not always take into account the particularities of cultural property. On most occasions, it also means that the parties have no choice on the jurisdiction (which courts hear the case), on the applicable law (which law applies), and on the judges (who decide the case).’

• Other Litigation Risks in Cultural Heritage Disputes include:

(i)      standing;

(ii)     the doctrine of Renvoi under Private International Law, which allows a court to apply a foreign country’s entire legal system, including its conflict of laws rules, when resolving a cross-border dispute, and requires the admission of expert evidence;

(iii)     the non-enforceability of a foreign penal law by an English Court;

• the admissibility of evidence (including expert evidence); and
• evidential difficulties in discharging the burden of proof.

‘Ethical Dimension’

• The Ethical Dimension is linked to:

-Museum Codes of Practice and Ethical Guidance in Restitution Claims.

-Reparative Justice.

-State Practice in Restitution Claims.

-Principles of Restitution which can be extrapolated from International Treaties, and Customary Rules of International Law.

• Philosophically, Ethical Principles of Restitution have their root in Antiquity.
• As Patty Gerstenblith observes in her book – ‘Cultural Objects and Reparative Justice – A Legal and Historical Analysis’ (2023):

‘During the Roman Republic and Empire, principles evolved for the behaviour of the conquering army, including limits on how much booty could be taken and what should be done with it. Consistently, with some notable exceptions, the Romans tended to show respect for religious sanctuaries. Even when sanctuaries were looted, the plunder was often recycled for other religious or public purposes. The legitimacy of such looting depended on whether the works were taken from religious or nonreligious context, whether the works were taken for the victors personal benefit or for the public benefit and, whether the works were taken as the result of legitimate warfare or were taken during civil administration or as a private action, which amounted to piracy. Nevertheless, Greek and Roman historians criticized the looting of artworks, sometimes even if works were taken from nonreligious contexts. … The Roman orator and lawyer, Cicero, elaborated on this theme in his prosecution in 70 BCE of Gaius Verres, the Roman civilian governor of Sicily, for corruption. … Cicero distinguish between ordinary war booty (spolia), which a conqueror is free to take, and illegal removal of art (particularly religious art) and architectural decoration (spoliatio). The later writings of the Roman historian Livy (59 BCE-17 CE) and the Greek geographer and traveller Pausanias (second century CE) perpetuated the distinction between takings that were considered legitimate and those that were not. Another theme found in Cicero’s Verrine Orations is the distinction between good uses of art (the public, commemorative, and religious purposes) and bad uses of art (for private, consumptive, and decadent purposes). Cicero’s writings and particularly the Prosecution of Verres played a significant role in the future development of the Law of Warfare and more general attitudes with respect to cultural objects. The Verrine Orations were well known to later Roman authors, such as Livy and Pliny, who wrote in the first century CE and who perpetuated Cicero’s principles concerning looting.’

• Cicero’s distinction between ‘Spolia’ and ‘Spoliato’ has shaped the attitudes of Museums about the ethics of restitution where the claimant was a European State, for example in the case of artefacts that were misappropriated for during the Napoleonic Wars.
• This dimension is also linked to the Cognitive Error of Orientalism, which in the West, influenced the attitudes of some museum curators, toward restitution in claims brought by source countries/states of origin.
• Orientalism involves a patronizing Western view of Eastern cultures, portraying them as static and inferior, which can manifest as a reluctance to return artifacts, a belief that Western institutions are better custodians, or the framing of cultural items as belonging to a ‘universal’ history rather than a specific cultural one.
• This framework can lead to a failure to recognize the harm of colonial collection practices and an inability to fully grasp the cultural and political importance of repatriation for the communities of origin.
• Orientalism fosters the idea that Western societies are more ‘rational’ and ‘developed’, leading some curators to believe that their museums are more capable of preserving, studying, and presenting artifacts than the country of origin.
• The act of removing and displaying artifacts is thus inherently linked to colonial power.
• Orientalist thought frames this act not as theft, but as a legitimate collection of objects from ‘lesser’ cultures, making repatriation a politically and culturally charged issue that challenges the curator’s authority and the museum’s established power structure.
• Curators who operate under an Orientalist mindset may continue to exhibit artifacts in ways that reinforce harmful stereotypes, such as portraying the ‘Orient’ as exotic, mystical, or barbaric.
• This can lead to the artifact being decontextualized.
• Orientalism also prioritizes a Western perspective, often at the expense of the lived experiences and cultural histories of the people from whom the artifacts were taken.
• This can result in a dismissive attitude towards restitution claims, and a failure to recognize the harm caused to the communities that have been dispossessed of their cultural heritage.
• Instead of seeing restitution as being a matter of righting historical wrongs, Orientalist thinking can frame the issue as a matter of museums ‘hoarding’ artifacts, and restitution efforts as being a political problem.
• This can lead to a reluctance to engage in meaningful dialogue and a tendency to delay or deny restitution requests.
• In my book I will be devoting an entire chapter to contemporary Ethical Principles of Restitution (‘EPR’), which can be used in Mediation as a tool for the joint-creation by the P’s of a New Paradigm of Restitution (‘NPR’).

‘Political Dimension’

• As Evangelos Gegas states in his article – ‘International arbitration and the resolution of cultural property disputes: navigating the stormy waters surrounding cultural property’ that and I quote:

‘The issue of cultural property, in general, is an immensely charged area of both legal and political discussions. … Hence, when disputes focus on cultural objects, cultural property is transformed into a hotly contested area because legal claims of ownership are infused with politically and emotionally charged interests. …

Any cultural property dispute must confront permanent removal of the cultural object from its source or its repatriation. The often strong and always competing interests of the country of origin and the current possessor of the cultural object are in direct conflict. Under current international cultural property law, practitioners and courts are still faced with dealing with this difficult problem.’

• A common aspect of the Political Dimension in Cultural Heritage Disputes which involve state actors, is that cultural sanctions can be used by the claimant state as leverage to either:

(i)  bring the recipient of the claim to the negotiating table; or

(ii) obtain their agreement to restitution.

• As Maria Shehade and Kalliopi Fouseki state in their article –‘The Politics of Culture and the Culture of Politics: Examining the Role of Politics and Diplomacy in Cultural Property Disputes’ and I quote:

‘The most illustrative example of using cultural sanctions is the case between Italy and the J.P. Getty Museum, which was eventually resolved in 2007. When negotiations between the two sides came to an impasse in April 2007, Italy announced that it would be imposing a “cultural embargo” on the Getty Museum. The threatened embargo meant that the Getty would not be able to receive loans from Italy and that the government’s collaboration in Getty research and conservation projects in Italy would be suspended. During that time, several requests from the Getty Museum to borrow Italian art or upcoming exhibitions in Los Angeles were delayed or ignored by the Italian authorities. When the negotiations came to an impasse, the embargo seemed to affect the projects and schedule of exhibitions of the Getty Museum. As the announced date for the initiation of the embargo was approaching, the two sides felt more pressure to reach an agreement. Eventually, the agreement came just a few days before the full embargo was scheduled to take effect. Although it was not the sole reason for the achieved resolution, the threat of an embargo nevertheless played a role in the developments. This is not the only example since there are many cases in which claiming governments have interrupted scientific collaborations, denied loans for exhibitions, or threatened to cancel excavation permits provided to the institutions in question. For example, in 2009, the Louvre returned to Egypt five Fresco fragments that were illegally taken from a tomb in the Valley of the Kings. The return came only after Egypt suspended its collaboration with the museum for exhibitions, cancelled a lecture on Egypt by a former Louvre curator, and suspended an excavation sponsored by the Louvre at the Necropolis of Saqqara.’

•  A third aspect of the Political Dimension in a Cultural heritage Dispute as Maria Shehade and Kalliopi Fouseki observe is that – and I quote:

‘Cases of cultural property disputes involving states are often affected by the international political scene in several ways. First, the relation between two countries can either facilitate the resolution of such disputes (in the case of good relations in collaboration at a governmental level or through established agreements) or create obstacles for settlement (if such relations are not in place). Second, cultural property disputes may be affected by current political agendas, either in the wider context of international relations or in internal political scenes.’

‘Decision-Making Dimension’

• The Decision-Making Dimension is the bridge between ongoing conflict and resolution.
• It is in this Dimension, that creative deal-structuring solutions can be imagined, explored, and jointly developed and agreed by the Participants – being terms of a compromise that satisfy their respective underlying interests to an extent which they each can live with, i.e. that are ‘enough’, and which they can also lawfully implement.
• In other words, it is in this Dimension, that a balance can be struck between the Participants’ absolute and binary, competing negotiation imperatives, i.e. of either: restitution or retention of the Artefact in dispute.
• A primary example being what was agreed in resolution of the claim for Tomanowas, which I mentioned earlier.
• Where a rights/power-based negotiation has resulted in deadlock, then using this Dimension a Mediator can facilitate a breakthrough by steering the Participants toward an interest-based dialogue, which involves exploring the possibility and benefits of cooperation instead of conflict.
• By facilitating an interest-based dialogue based upon Ethical Principles of Restitution, a Mediator can facilitate the reframing of each Participant’s Paradigm as being an opportunity to end an impasse, by jointly creating a New Paradigm of Restitution.
• The decision-making process followed by Glasgow City Council in the claim by the Wounded Knee Survivors Association for the return of the Lakota Dance Shirt provides a decision-making process template.
• The ghost dance shirt was taken from a Lakota warrior’s body after the Wounded Knee Massacre in 1890 on the Pine Ridge Indian Reservation in South Dakota.
• It is a sacred item, which is believed to have spiritual power.
• In 1891 the Ghost Shirt was brought to Glasgow by a member of Buffalo Bill’s Wild West Show.
• Glasgow City Council, which had established a Repatriation Committee for the resolution of Cultural Heritage Restitution claims, evolved five criteria of restitution.
• When applied, this resulted in a decision to return the Lakota Ghost Dance Shirt in circumstances which transpired to be culturally beneficial to the City itself, leading to a significant ceremony for healing and closure.
• The five Restitution criteria are:

(i)      The status of those making the request i.e. their right to represent the community to which the object originally belonged.

(ii)     The continuity between the community which created the object and the current community on whose behalf the request was made.

(iii)     The cultural and religious importance of the object to the community.

(iv)    How the object was acquired by the museum and their subsequent and future use.

(v)     The fate of the object if returned.

• The procedure for arriving at a decision about restitution in that case also involved:

(i)      Briefing by an academic expert in the provenance and historical background of the Artefact .

(ii)     Consultation with the Council’s Legal Department – who advised that while there was no obligation in law to return the Artefact, the Council had the legal power to transfer ownership of the Artefact if it wished.

(iii)     Consultation with members of the museum community.

• As Mark O’Neill, Head of Arts and Museums for Glasgow City Council, who at the time was Head of Curatorial Services, remarked following the decision:

‘If museums represent our better selves, our humane values, then we have to admit to the possibility that there may be other values, which are more important than that of possession and preservation. Possession in itself cannot be an absolute value, taking precedence over all others. And if our values lead us to preserve an object because of what it tells us about the history of a particular human group, then it is inconsistent not to give that group the respect of at least taking their views seriously. The objects we preserve and the stories they tell reflect our values, what we stand for, how we wish to see ourselves, what we wish to bring with us into the future. A related argument here is that to give one object back creates a precedent and the floodgates will be opened up. The City Council has rejected this argument. It cannot be right to say, the case for returning this group of objects is just, but it cannot be done because future unjust cases may be encouraged. Values are above all a matter of choice, and for values to be real we must continually make the necessary choices. In Glasgow our vision of museums is not just as dusty storerooms but as places where urgent issues of personal and communal meaning and identity can be explored and renegotiated.

• So, this Dimension is closely linked to the Ethical Dimension.
• I am going to conclude this section by briefly mentioning three creative deal-structuring Tools.
• 1^st Loans – Participants’ often agree instead of Restitution, to the loan of the Artefact that is being claimed; or agree to restitution in return for the loan by the claimant of another Artefact.

An example of the former, in the dispute between the Cantons of Saint-Gall and Zurich, was recognition of Zurich’s ownership of the claimed manuscripts, in return for their loan to Saint-Gall for a potentially unlimited period.

An example of the latter,  is the February 2002 agreement  between France and  Nigeria  on the Nok and Sokoto  statuettes, which provided for the recognition of Nigeria’s ownership of the claimed Artefacts, in exchange for the grant of a renewable 25 year loan to the Quai Branly Museum. Temporary loans have also been arranged when restitution could not be granted for technical reasons, and a primary example is the Benvento  Missal – which I will discuss in the book.

• 2^nd Restitution accompanied by Cultural Cooperation Measures – the Euphronios Krater.

As Marie Cornu and Marc-Andre Renold state in their article – ‘New developments in the restitution of cultural property: alternative means of dispute resolution’ – and I quote:

‘Under the agreement of February 21, 2006, the Italian authorities undertook, in exchange for the restitution, to make available to the [Metropolitan Museum of Art in New York], as of January 15,2008, “cultural assets of equal beauty and historical and cultural significance to that of the Euphronios Krater” via four-year international loans. The agreement goes on to list in detail the 12 specific objects that were to be lent, with inventory numbers. The museum furthermore undertook to make other restitutions and the Italian authorities promised other loans, particularly of archaeological objects found during missions financed by the museum (Article 7). The term of the agreement is long, since it is stated to remain in force for 40 years.. The agreement signed by Italy with the Boston Museum of Fine Arts (2006), the Getty Institute (2007), Princeton University (2007) and Cleveland Museum of Art (2008) contain similar provisions.’ 

• 3^rd Production of Replicas –

For example, in the mediated settlement of the dispute between the Cantons of Zurich and Saint-Gall, it was agreed that Zurich would keep the magnificent cosmographical globe by the Prince-Abbot Bernhard Muller dating from 1554, and Zurich would pay for the making of an exact replica, which would be given to Saint-Gall.

Another example, is the making of an accurate replica of Paolo Veronese’s ‘The Wedding of Cana’, which was installed in 2007 in its original location, the refectory of the Basilica of San Giorgio Maggiore in Venice.

The replica is a high-resolution, digital facsimile created by Factum Arte, designed to be a faithful reproduction of the original painting’s condition, texture, and colour. Its installation was intended to restore the dialogue between the painting and its architectural setting by Andrea Palladio. The original painting, which was stolen by Napoleon’s troops, remains in the Louvre Museum.

This last example also illustrates the potential use of Digital Art as a tool in the Mediated resolution of Cultural Heritage Disputes – which I will discuss in my book.

CONCLUSION

• Mediation is an open and flexible process, in which the participants are at liberty to make any proposal; are not obliged to agree on any solution unless it serves their interests; and only need make a genuine effort toward a solution, then whatever the source of an impasse, ad hoc mediation can potentially result in a breakthrough.
• As Jeanette Greenfield argues in the third edition of her book – ‘The Return of Cultural Treasures’ and I quote: 

‘An examination of the cases relating to cultural property … has clearly indicated that we are really concerned with three different issues:

(i)     conservation, which is an ongoing issue;

(ii)    illicit trading, which is a contemporary issue; and

(iii)    the physical return of cultural property which may be associated with illicit trading but is also a historical issue.’

• Therefore, Participants in the Mediation of a Dispute, can explore and discover the existence of common ground, and thereby jointly create a New Paradigm of Restitution, by engaging in a third party facilitated dialogue about:

(i)     the nature of the object, i.e. Artefact in dispute; and

(ii)     the circumstances in which the Artefact was acquired.

• Of course, before such a dialogue can take place, there has to be a political willingness by all involved in the dispute, about the benefits and potential of ad hoc mediation in resolving a CH Dispute.

• In the wake of the opening of the Grand Egyptian Museum in Cairo, on 1 November, there has been a renewed call for the return of the Rosetta Stone to Egypt.

• The background to the claim was succinctly summarised by Jeanette Greenfield in her book as follows – and I quote:

‘In the spring of 1801, after the operations of Sir Ralph Abercromby threatened Cairo, the scholars of the French expedition decided to leave the capital for the safety of Alexandria, taking with them … the Rosetta Stone. … Under article XVI of the Capitulation of Alexandria they were compelled to surrender the Rosetta Stone … to general Hutchinson at the end of August 1801. … It was surrendered with difficulty. An eyewitness account by Professor Edward Clarke of Cambridge, an English traveller and antiquary, records that the stone was handed over to him “in the streets of Alexandria” by a French officer in the presence of William Hamilton (a fellow English traveller and antiquary) and Mr Cripps. Thus the Rosetta Stone was acquired by the British as a result of war. Colonel Turner embarked with the stone on HMS L’Egyptienne and arrived in Portsmouth in February 1802. On 11 March the stone was deposited at the headquarters of the Society of Antiquaries in London, and toward the end of 1802 the stone was removed from the Society of Antiquaries to the British Museum, where it was mounted and immediately exhibited to the general public. It has remained on exhibition there ever since as a central object in its Egyptology collection. The stone is often cited as a good example of an object that could be restored, but since it has long been deciphered, there was no formal governmental claim for it until 2003. In that year Dr Zawi Hawass  the director of the Supreme Council of Antiquities in Cairo proposed a loan of the stone with a view to its permanent return. The Cairo Museum would be willing to exchange the replica it holds in return for the real stone. … In 2003 the request by the Egyptian government for the Rosetta Stone was part of a worldwide program to seek the return of a number of objects removed from Egypt. These included the Nefertiti bust in the Berlin Museum, the statues of Hatsheput in the Metropolitan Museum of Art in New York, and the landmark obelisk in the Place de la  Concorde in Paris which was taken from the Palace in Luxor. The Egyptian request for the return of the Rosetta Stone was countered with the arguments of legislated impediments and the existence of a greater audience at the British Museum.’

• Mediation has not be attempted in this claim.
• The ethical case for returning the Rosetta Stone is rooted in principles of ‘Reparative Justice’.
• Because the Stone forms an integral part of Egypt’s history, and is a powerful symbol of cultural identity, the Artefact is of national importance.
• Returning the Stone is also seen as a necessary step in decolonizing museum collections, and in addressing the lasting impact of colonial violence, occupation, and exploitation.
• The Stone was transferred to Britain through the Treaty of Alexandria, which was signed under duress during the conflict between the British and French in Egypt.
• Some argue that this treaty was a product of an unjust ‘power imbalance’ that violated international and ethical norms at the time of acquisition.
• Therefore, restitution would be a form of ‘reparation’, for a ‘historical injustice’ and the intangible harm and damage caused by dispossession, during a period of colonial occupation.
• Returning the Stone would also be a significant gesture of goodwill, that would help to improve foreign relations – including ‘cultural relations’, between Egypt and the UK.
• Conversely, the legal argument for keeping the Stone is predicated upon the Treaty of Alexandria having lawfully transferred ownership at the time.
• If the significance of the Rosetta Stone to Egypt, and the ethically questionable circumstances in which it was acquired, can be acknowledged, that may open the door to the creation of a future ‘Special Relationship’ between the British Museum and the Grand Egyptian Museum in Cairo, whereby, for example, the replica in Cairo is exchanged for the Artefact, and the loan of other Artefacts for exclusive exhibition at the British Museum, including Artefacts from the Tomb of King Tutankhamun can be arranged, i.e. as part of an ongoing future relationship of ‘cultural collaboration’ between the two Museums.
• By agreeing to take part in Mediation, the Participants thereby implicitly or explicitly recognise the legitimacy of each other’s interests in the Artefact for which restitution is sought, even if Museum Trustees do not concede to restitution.
• That is because Mediation is a voluntary, consensual process, and the willingness by the P’s to participate, indicates a willingness to engage with each other’s perspectives and to explore potential resolutions, thereby validating each other’s interests in the Artefact.
• In other words, ‘Mediation Implies Recognition.’
• Since ‘Mediation Implies Recognition’, the joint exploration, formulation, structuring and agreement of terms of a mutually beneficial creative deal in  resolution of a Cultural Heritage Dispute, is exactly what Mediation can bring about.
• In Mediation, the participants own the process, and behind closed doors have the opportunity to determine the outcome of their dispute for themselves.
• So what do they have to lose by entering into Mediation?
• More importantly – What could they each gain?
• The first hurdle to overcome is political resistance to Ad Hoc Mediation.
• So, there needs to be more education about the process, and in particular about the dynamic forces at work within Mediation, i.e about the Dimensions, which when understood, can be manipulated, in order to bring about a ‘win-win-win’ solution, that is not only in the best interests of the participants, but also of the Artefact in dispute itself.
• It is therefore my hope that this talk and my book, will increase awareness and understanding of the role and benefits of mediation in resolving Cultural Heritage Disputes.

END OF TALK