In order to provide an efficient framework for mediation, WIPO and ICOM drafted a series of tools comprising the ICOM and WIPO Mediation Rules and standard forms for submitting a case as well as further information with regard to the procedure and its fees.
Considering the potential usefulness of Alternative Dispute Resolution (ADR) and in particular mediation, the International Council of Museums (ICOM) and the World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center) have developed a special mediation process for art and cultural heritage disputes and assistance in negotiations.
Art and cultural heritage disputes and negotiations distinguish themselves from other disputes by their highly specific subject matter. The stakes in seeking agreement in a cultural property ownership issue, for instance, are multiple since the past embedded in the work of art affects ownership of the work. In art or cultural heritage disputes legal and non-legal issues are intertwined; they require an understanding of every aspect of the dispute. In mediation all the intricacies of an art or cultural heritage dispute may be addressed. The procedure takes into consideration issues of commercial, cultural, ethical, historical, moral, religious, or spiritual nature.
Typical litigation hurdles, such as statutes of limitations, may be overcome in mediation. Mediation is also a forum in which customary laws can be taken into account to reach an agreement. While preserving or enhancing the relationship between the parties, mediation guarantees confidentiality, and a speedy resolution of the dispute at minimal cost. By giving a frame to the negotiations, mediation allows to manage the parties and make them feel secure, thus favouring that an agreement be reached and respected.
ICOM-WIPO Art and Cultural Heritage Mediation is a not-for-profit mediation service specially designed for art and cultural heritage disputes and negotiations. In particular, parties can choose a mediator experienced in art and cultural heritage mediation from the ICOM-WIPO List of Mediators. ICOM and the WIPO Center, two organizations recognized for their rigour and expertise, provide procedural advice and support to the parties.
In ICOM-WIPO Mediation, parties are provided with a clear and efficient procedural framework set out in the ICOM-WIPO Mediation Rules. These Rules incorporate by direct reference the ICOM Code of Ethics for Museums, and also contain specific provisions on mediator impartiality and independence.
ICOM-WIPO Art and Cultural Heritage Mediation is open to ICOM-members and non-members.
The scope of ICOM-WIPO Mediation is broad. On one hand, it covers disputes relating to ICOM’s areas of activities, including but not limited to return and restitution, loan and deposit, acquisition, and intellectual property. On the other hand, it may include issues relating to the insurance of art works, art as collateral in financing transactions, art fairs, digitalization, donation, "droit de suite", misappropriation of traditional cultural expressions, repatriation. Public or private parties may use the ICOM-WIPO Art and Cultural Heritage Mediation Process including but not limited to States, museums, indigenous communities, and individuals.
Mediation is a consensual process. There are two principal ways to reach party consent to submit a case to ICOM-WIPO Art and Cultural Heritage Mediation.
The first option is for parties to plan in advance, before a dispute or the need for negotiations arises, and insert a mediation clause into the agreement(s) and contract(s) between them. ICOM and WIPO make available for this purpose a Recommended ICOM-WIPO Mediation Contract Clause for Future Disputes and Negotiations.
The second option is to submit a dispute to mediation after it has arisen, or a commenced negotiation. In this case the parties can sign the Recommended ICOM-WIPO Mediation Submission Agreement for Existing Dispute and Negotiations.
Once the parties have consented to mediation, they must contact the ICOM Secretariat to submit a Request for Mediation and trigger the mediation process. Parties may use for this purpose the Optional Standard Form to File Request for Mediation.
The ICOM Secretariat carries out a prima facie review of the Request for Mediation in order to ascertain that the dispute falls within the intended scope of the mediation procedure and is eligible for ICOM-WIPO Art and Cultural Heritage Mediation. The ICOM Secretariat endeavours to complete the review of requests for mediation within 30 days from its receipt.
All eligible requests are sent to the WIPO Center for the mediation to commence and the WIPO Center administers the process. If the request is not eligible for ICOM-WIPO Art and Cultural Heritage Mediation, the ICOM Secretariat sends a refusal letter to the parties.
The parties have fifteen days from the commencement of mediation to agree on the person of the mediator. If the parties fail to reach an agreement within that period, the mediator is appointed according to the List Procedure provided in article 8 of the ICOM-WIPO Mediation Rules. The WIPO Center, in consultation with ICOM, sends a list of qualified mediators to the parties. The mediators on the list are selected for their skills in mediation and expertise in art and cultural heritage and related areas. The parties can agree on a mediator from that list or indicate their preferences. The WIPO Center appoints the mediator after confirming his/her impartiality and independence.
The parties in cases under the ICOM-WIPO Mediation Rules may choose to use the WIPO Electronic Case Facility (WIPO ECAF) which allows parties and all other actors in a case to file submissions electronically in order to facilitate communication. In all respects, ICOM and the WIPO Center have a strong commitment to procedural efficiency.
The Schedule of Fees for ICOM-WIPO Mediation provides for two types of fees: an administration fee and the mediator’s fees.
To become a mediator for ICOM-WIPO Art and Cultural Heritage Mediation, one must submit the Application Form for the ICOM-WIPO List of Mediators to ICOM or the WIPO Center. An ICOM-WIPO Selection Commission decides if the candidate has sufficient skills in mediation and expertise in art and cultural heritage areas to be selected for the ICOM-WIPO List of Mediators.
ICOM and the WIPO Center also provide their “Good Offices” to ease the relations between the parties to a dispute or negotiation and provide procedural advice to facilitate that an agreement be reached through mediation. The good offices are provided free-of-charge and on a confidential basis.
Further, parties have the possibility to combine the ICOM-WIPO Mediation procedure with other procedures offered under the WIPO ADR Service for art and cultural heritage, such as WIPO Arbitration, Expedited Arbitration, or Expert Determination.