Mediation of Cultural Heritage Disputes

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

In the book, I will also discuss IOMed and the Convention on the Establishment of the International Organization for Mediation.

See the Research Bibliography below.

Current Chapter Structure (08.10.2025)

Abbreviations.

Glossary of Terms.

Introduction.

Chapter 1 – Background.

  • Cultural Heritage Disputes.
  • Human Dimension.
  • What is at stake in a Cultural Heritage Dispute is also an opportunity.
  • Context:

Past – Historical wrongdoing.

Present – The global Illicit Trade in Tangible Cultural Heritage.

  • Parties & Stakeholders:

State Actors.

Indigenous Communities.

Private Persons.

    • Narratives of Possession.
    • Narratives of Return.
    • The Politics of no return.
    • People Power – Evolving Social & Ethical Norms.
    • The shared interest of the International Community in disincentivising Cultural Heritage Crime.
    • Cultural Heritage Diplomacy.
    • The applicable Legal Framework and Core Principles of International Cultural Heritage Law.
    • The carving out and treatment of Human remains as a special category of Cultural Heritage under domestic and International Law.
    • Underwater Cultural Heritage and International Law.
    • Statutory & Non-Statutory Museums.
    • Deaccessioning – Museum Trustees Duties & Powers.
    • Models and Rules of International Dispute Settlement in Claims for the Return of Cultural Heritage.
    • The International Court of Justice.
    • Export restrictions.
    • Patrimonial Laws.
    • Litigation Risk & the ‘Uncertainty Principle’:

Jurisdiction.

Applicable Law – Procedural Law & Substantive Law.

Private International Law and Cultural Heritage.

Litigation standing.

Limitation and Laches.

Remedies & Discharging the Burden of Proof.

Enforcement.

Chapter 2 – Mediation.

  • Mediation Process & Stages.
  • Benefits of Mediation.
  • Court ordered Mediation.
  • Choice & Appointment of Mediator.
  • Mediation Agreement – ‘Ground Rules’.
  • Ethical Codes governing the conduct of Mediations.
  • House-Keeping on the Mediation Day.
  • Starting the conversation.
  • Private Sessions.
  • Plenary Sessions.
  • Recording binding terms of agreement.

 Chapter 3 – Mediator Tools.

  • Multi-Disciplinary Approach.
  • Intercultural Communication.
  • Pre-Mediation Day Zoom Calls.
  • Mediation implies recognition.
  • Understanding the source of each Participant’s [‘P’s’] Paradigm.
  • ‘Legal Doctrine + Taxonomy = Paradigm’.
  • Facilitating awareness of Cognitive Errors.
  • Facilitating acknowledgment of the need for a New Paradigm of Return (‘NPR’).
  • Facilitating exploration of the potential Deal-Making-Zone (‘DMZ’).
  • Facilitating transformation through the joint-development of a NPR based upon Ethical Criteria of Return (‘ECR’).
  • Mediation Quadrant Boxes.
  • A Circle inside a Square.
  • Intellectual Property Rights in Cultural Heritage.

Chapter 4 – Ethical Principles of Return.

  • What attitudes toward art restitution were there in antiquity that are relevant to the Mediation of claims today?
  • Reparative Justice.
  • Cultural Relativism.
  • Customary Rules of International Law.
  • Examination of the nature of an object and means of acquisition = a framework for agreeing ECR

Chapter 5 – Ethics in Mediation & Mediation Advocacy.

Chapter 6 – Mediation Advocacy.

  • 1st Things 1st! – Preparation Mindset & Managing Expectations.
  • Draw them towards you.
  • Build a working relationship with M and MA.2/P.2 from the outset
  • Do unto others as you would have them do unto you.
  • Do not have an argument with anyone about anything!
  • Do not retaliate i.e. react to any provocation.
  • Listen to understand in order to be understood.
  • Adopt an unconditionally constructive approach – Treat each other as partners.
  • Initiate a principle-centred dialogue.
  • Pareto Principle.
  • Hidden Value.
  • Thinking ‘win-win-win!’
  • Isolate the constraint.
  • ‘Interdependence paradigm’.
  • Create a ‘Special Relationship’.

Chapter 7 – Institutional Mediation Models & Rules

  • The Convention on the Establishment of the International Organisation for Mediation (‘IoM Mediation’).
  • Rules of Procedure for Mediation and Conciliation in accordance with Article 4, paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (‘UNESCO Mediation’).
  • Court of Arbitration for Art Mediation Rules (‘CAfA) Mediation’.

Conclusion – ‘Deal-Making Planning & Settlement Analysis & Evaluation’.

Endnotes.

Bibliography

Appendices:

Appendix 1 – Precedents.

Appendix 2 – The Convention on the Establishment of the International Organisation for Mediation.

Appendix 3 – Rules of Procedure for Mediation and Conciliation in accordance with Article 4, paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation

Appendix 4 –  Court of Arbitration for Art (CAfA) Mediation Rules.

Appendix 5 – Zoom Mediation Checklist.

1st Draft of the Preface (12.10.2025)

In relation to dealings in objects of Ancient Cultural Heritage (‘Artefacts’), two inter-related trends have emerged over recent decades:

  • There has been a significant rise in claims for the return of Artefacts, brought by States of Origin/Indigenous Communities (‘Claimants’) against Market State Actors i.e. Museums and Galleries, and Private Collectors (‘Recipients’), for the return of Artefacts that are National Treasures and Sacred Objects (‘CH Disputes’).
  • Driven by factors which include: conflict; a rise in looting; the insatiable appetite of wealthy private collectors; and the use of trafficking to fund criminal activities, the scale of the global illicit market in the plunder and sale of Artefacts, has become industrial.

On p. 76 of her article ‘Tomb-Raiding: The Second Oldest Profession?’ published in the Harvard Art Law Review, Vol 1 Spring 2025, pp 48 -80, Leilah Amineddoleh states 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.

On p.276 of 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.’

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.’

CH Disputes are complex and multi-jurisdictional. Thus where a claim can be litigated, it will be pregnant with litigation risk. CH Claims are also multi-dimensional’, touching upon issues[i] which include: Culture; Law; Archaeology, and Ethics.[ii] Resolution requires a collaborative, multi-disciplinary approach and co-operation between a wide range of professionals. That is why mediation is always an appropriate form of ADR in a CH Dispute.

However, due in part to the political sensitivity of CH Disputes, and a reluctance by those involved, i.e. the Participants (‘P’s’), to share their experiences in detail about how Mediation has worked in CH Disputes,  the literature about Mediation in CH Disputes lacks detailed analysis of actual Mediation processes and outcomes that is based upon empirically tested methods, i.e. observation and experience, rather than theory or pure logic.

Mediation has been discussed intensely at the international level. In 2005 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’), which provides a framework for discussion and negotiation, added Mediation and Conciliation to its mandate. Subsequently, specific Rules of Procedure for Mediation and Conciliation were developed for the facilitation of bilateral negotiations. However, only three cases are currently pending before the Committee. [iii] 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; and (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.

In July 2011 the ICOM/World Intellectual Property Organization (‘WIPO’) Mediation for Art and Cultural Heritage disputes was launched .This specialized program was 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. However, publicly confirmed cases using the formal ICOM-WIPO Rules are not widely detailed, with many examples showing the use of ICOM’s ‘good offices’ or WIPO’s general ADR services. It appears that only three cases have been resolved using these various ADR processes.[iv] . So, the track record of achieving a ‘deal’ made in Mediation using ICOM-WIPO may be as low as one.

Therefore, the effectiveness of these Institutional forms of Mediation is in doubt. Since CH Disputes are notoriously ‘Political’, it is likely that Claimants may not trust the process because fear political interference by Market States. In the case of former colonies they may also feel that  these international organisations are ‘patronizing’ the former colonies of Market States. In which case, the credibility of these institutional forms of Mediation has been undermined. That leaves bespoke and voluntary ‘Ad Hoc Mediation’ as the only possible method of resolving a CH Dispute through a 100% facilitated dialogue.

However, the published literature about the Mediation of CH Disputes, provides no detailed and in-depth guidance about how bespoke Ad Hoc Mediation works in practice, in relation to CH Disputes, nor about the Mediator and Mediation Advocacy Tools that skilled practitioners can use to overcome obstacles, i.e. ‘Road Blocks in negotiation, as and when they arise throughout the process, and about how to avoid them in the first place, i.e. through rigorous and careful preparation by all involved.. The author’s aim is to fill that gap, by providing a Handbook for Practitioners of Mediation and Participants.

Mediation is the Art of the Possible. It is not a science. Mediation is about self-determination of the outcome. That depends upon the dynamic interaction which take places during the process between M, the MA’s and the P’s. Paraphrasing Søren Aabye  Kierkegaard,  ‘Although life can only be understood backwards, it must be lived forwards.’ That requires letting go of the past by working together to create a practical and legal framework for a mutually satisfactory future.

So, what is important in the Mediation of a CH Dispute is bespoke process design, and the skill of M, the MA’s and the P’s in implementing and conducting the process as a join-enterprise in which each of them in their own way, has ‘skin in the game.’ This requires thinking outside of the box. It is also why what it is possible to agree in Mediation, is only limited by the imagination of those involved.

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, there is no universal Blueprint for their Mediation. Furthermore, Mediation as a method of ADR in CH Disputes is continuously evolving. Nobody is an expert. 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 Mediation.

The methods described in the book are based upon the author’s knowledge and experience as an Art and Cultural Heritage Law Practitioner and CMC Registered Mediator, and upon first principles of Mediation and Mediation Advocacy in bespoke Ad Hoc Mediation.. So, while this book is about the Mediation of Cultural Heritage Disputes, many of the Mediation and Mediation Advocacy Tools that the author describes are of wider application, and apply equally for example to the Mediation of Commercial Dispute whether they involve Art or not.

[i] ‘The past few decades have witnessed an uptick in legal claims made by foreign sovereigns for the return of looted cultural heritage objects. These objects were not necessarily displaced as war plunder, but as objects that entered collections through the art market. ‘The increasing number of legal cases brought by sovereign governments indicates that cultural heritage disputes are not merely between private parties. Rather, the issue is of concern to sovereign nations, as trustees of heritage items. These disputes reveal broader issues related to diplomacy, international relationships, and our shared human history.’ (Stamatoudi, Irini, Editor (2022) Research Handbook On Intellectual Property and Cultural Heritage, Edward Elgar Publishing, p. 461).

[ii] For a succinct introduction, see: ‘Editorial: Alternative Dispute Resolution in Cultural Property Disputes’, by Maria Shehade, Kalliopi Fouseki, and Kathryn Walker Tubb, International Journal of Cultural Property (2016) 23: 343-355.

[iii] AI – ‘The main cases pending before the UNESCO Intergovernmental Committee are the Parthenon Sculptures (Greece/United Kingdom) and the Broken Hill Man Skull (United Kingdom/Zambia). While the Parthenon sculptures case is still pending, the Committee previously called on both countries to intensify their efforts for a satisfactory settlement and has supported the opening of the Acropolis Museum as a potential solution. The case of the Broken Hill Man Skull is also ongoing, with the Committee urging both the UK and Zambia to find a mutually acceptable solution.

Pending Cases

  • Parthenon Sculptures:

The case involves a long-standing request from Greece for the return of sculptures held by the United Kingdom, which is often referred to as the Parthenon Marbles.

    • The Committee has called for both countries to intensify efforts for a settlement.
    • Greece has promoted the Acropolis Museum in Athens as a suitable location for the sculptures.
  • Broken Hill Man Skull:

The case involves a request from Zambia for the return of the skull from the United Kingdom.

    • The Committee has urged both the UK and Zambia to find a mutually acceptable solution.
  • Other cases:

The Committee also acknowledged the submission of the Ife Bronze Head (Belgium, Nigeria, and United Kingdom) and welcomed the initiation of consultations.

Resolution and outcomes

  • Parthenon Sculptures: The Committee has supported the idea of bilateral negotiations and has acknowledged the opening of the Acropolis Museum as a potential solution.
  • Broken Hill Man Skull: The Committee continues to urge the parties to find a mutually acceptable solution.
  • Ife Bronze Head: The Committee has welcomed the initiation of consultations on this matter.’

[iv] These are:

  • Indigenous Community Claim – WIPO facilitated a resolution between a museum and an indigenous community over the restitution of a cultural object and related intellectual property concerns.
  • St Gallen and Zurich Cantons –A dispute between two Swiss cantons over cultural assets seized during the 18th-century religious wars was resolved through mediation. The settlement included the return of some items, recognition of the cultural importance of the unreturned objects, long-term loans, donations, and the creation of a copy of one of the artifacts.
  • The Makondé  Mask – While not confirmed to be ICOM-WIPO mediation, the donation of a Makondé Mask to the National Museum of Tanzania in 2010 was a result of ICOM’s “good offices,” leading to the expansion of their ADR services

Extract from the current text of Chapter 1 – ‘Introduction’ (15.09.2025)

‘Face-to-Face Negotiation is the most common form of ADR in CH Disputes, whether Mediation is later attempted or not. So, in this book, the author seeks to answer two core 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, how can a Mediator (‘M’) 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 (‘P’s’) 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 (‘MA’s’) need, in order to bring about a ‘convergence’, i.e. ‘transformation through Mediation’, by creating a ‘New Paradigm of Return’?

The book is divided into 7 chapters. Chapter 1 explains the background and context in which the Mediation of CH Disputes take place. This highlights that Mediation in a CH Dispute requires a multi-disciplinary approach by all involved in the process. In Chapter 2 the  process of Mediation is discussed from start to finish. This is written from the perspective of Ad Hoc Mediation, although many of the principles discussed also apply to the Institutional Mediation of CH Disputes which is discussed in Chapter 7. In Chapter 3 the author discusses specific Mediator Tools in the context of CH Disputes. Chapter 4 discusses substantive ‘Ethical Principles of Return.’

Mediation is a ‘joint-enterprise’ because the achievement of a mutually-satisfactory outcome depends as much upon the skills and behavioural ethics of the Mediation Advocates (‘MA’s), as it does upon those of the Mediator (‘M’). So, in Chapter 5 the author discusses behavioural Ethics in Mediation and Mediation Advocacy. In Chapter 6 discusses Mediation Advocacy Skills and Tools. Finally, Chapter 7 examines Institutional Mediation Models and Rules for the Mediation of CH Disputes.

Throughout the book, the author’s premise is that while in an appropriate case an English Court may order Mediation, where as is more common, a claim for restitution is incapable of litigation, e.g. because it is procedurally time-barred, that Mediation is usually a voluntary and bespoke process, which is designed by the P’s, for facilitating self-determination of their dispute. Consequently, the author’s primary focus is upon bespoke ‘Ad Hoc’ as distinct from Institutional Mediation.

The central thesis the author advances in the book is that:

  • In a CH Dispute, Mediation allows each P to let go of the past by creating their own future, i.e. through the transformative process of jointly creating a mutually satisfactory and practical, New Paradigm of Return (‘NPR’).
  • In order to be effective in a CH Dispute, M must understand the ‘source’ of each P’s Paradigm.
  • So, before M can facilitate the joint-creation by the P’s of a future relationship between them, M must first understand the past that has preceded the dialogue in which the P’s have now chosen to participate.
  • In other words for M, the starting point in the 1st series of Private Sessions with each P, is to understand what has brought the P’s to the negotiating table.
  • How you classify something frames how you think, see and feel about it.
  • Thus, the ‘Special Values’ attributed by a P to an object/ artefact of tangible Cultural Heritage, i.e. the ‘Human Dimension’ of a CH Dispute, shapes the P’s respective Paradigms for and against Return.
  • ‘Legal Doctrine + Taxonomy = Paradigm’, is an analytical Tool that M can use to develop a conceptual framework, in order to understand each P’s paradigm.
  • In the course of exploring each P’s paradigm, M can also facilitate an awareness of any underlying Cognitive Errors that are deeply entrenched and will inevitably result in negotiation deadlock.
  • Facilitating awareness of underlying Cognitive Errors is also an opportunity to facilitate the idea that the claim is also an opportunity for the recipient.
  • M’s primary tool is bringing about such a Paradigm Shift is the 3 R’s – ‘Reflect, Reframe and Reality-Test.’
  • At the epicentre of any CH Dispute is a struggle between two competing theories under International Cultural Heritage Law.
  • These theories typically encapsulate the historical roots of the P’s conflicting and competing paradigms in a CH Dispute.
  • They are: 

‘Cultural Nationalism’– Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin (UNESCO Convention 1970, Article 2 and the Preamble)

‘Cultural Internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention – “the cultural heritage of all mankind.” (Preamble of the Hague Convention 1954 and UNESCO Convention 1970, Article 4).

  • Cultural Internationalism is based upon a ‘Cognitive Error.’
  • In a CH Dispute the bridge between the ‘past’ and the ‘future’ is not the object/artefact in dispute itself.
  • The bridge is the construction through Mediation of a future ongoing relationship between the P’s based upon co-operation, preceded by
  • In practice, Co-operation can take many forms, which include future loans of art in exchange for what has been returned, education and training about archaeology and excavation, and multi-cultural events/exchanges.
  • The cornerstone of this bridge, is the joint creation by the P’s of a ‘New Paradigm of Return’ (‘NPR’).
  • This requires the agreement and application to the specific facts of a CH Dispute, of ‘Ethical Criteria for Return’ (‘ECR’).
  • ECR requires M to think outside the box about the existence of ‘transcending’ principles that align with the underlying interests and public sentiments each P’s ‘Stakeholders’ (‘S’).
  • M’s framework in facilitating a dialogue between the P’s about the joint-creation of a ‘New Paradigm of Return’ based upon ‘Principled Criteria for Return’, is enquiry during the first series of Private Sessions with each P about:

the nature of the artefact/object in dispute; and

the circumstances in which it was acquired.

  • Since the existence of a norm of International Law is strengthened by precedent and practice, a self-reinforcing ‘Virtuous Circle’ connects the outcome of Mediation in CH Disputes, with the establishment of a norm of International Law based upon ECR.
  • In order words, it is Participants in Mediation, Mediation Advocates, and Mediators, who are the engine of transformation in CH Disputes, and not judges.
  • A Customary Rule of International Law can emerge as a result of State Practice.
  • By agreeing to Mediation, a ‘Market State’ (‘MS’), i.e. the State in possession of the disputed Cultural Heritage artefact (‘DCHA’), implicitly or explicitly recognizes the legitimacy of the Claimant State’s, i.e. the State of Origin’s (‘SO’S) interest in the DCHA, even if it does not concede to restitution.
  • That is because Mediation is a voluntary, consensual process, and the willingness to participate indicates a willingness to engage with the claimant state’s perspective and explore potential resolutions, thereby validating the interest of the State of Origin in the matter.
  • In other words, ‘Mediation Implies Recognition.’
  • The emergence of a new Customary Rule under International Law does not require worldwide acceptance.
  • However, it must be endorsed by States whose interests will be affected, i.e. by both Market States and States of Origin.
  • Since 2000, there has been a growing trend of return to States of Origin by Governments, Museums and individuals in Market States.
  • While leading commentators consider that this evolving trend has not yet established a new Customary Rule of International Law, since Mediation ‘implies recognition’ by Market States of the ‘legitimacy of the interests’ asserted by States of Origin in the return of historically removed tangible cultural heritage, then to the extent Mediation has resulted in return, the known outcome of such Mediations logically, adds to the growing body of evidence of the emergence of a new Customary Rule of International Law.
  • Axiomatically, by facilitating the emergence of a new ‘Customary Rule of International Law’, Mediation is thereby also facilitating the creation of a new ‘Paradigm of Restitution.
  • Consequently, ‘The increasing recognition of the interests of states of origin in regard to their wrongfully taken cultural heritage is the bridge between illegally removed heritage and historically removed heritage.’ (‘China Cultural Heritage And International Law’ (2018) by Hui Zhong, p.83).’

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[23.05.2025]

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