Art and Cultural Heritage Mediation - Reference Tools

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.

ICOM-WIPO Mediation Rules

Introduction

ICOM and WIPO Collaboration

Recognizing the potential usefulness of Alternative Dispute Resolution, and in particular mediation, the International Council of Museums (ICOM) and the World Intellectual Property Organization (WIPO) agreed to collaborate in the development and organization of a special mediation process for disputes involving ICOM's areas of activity. WIPO and ICOM have a long-standing relationship and also collaborate in a number of other areas.

Museums and other stakeholders in the art and cultural heritage sector can be involved in different types of disputes, for example concerning the provenance, return, restitution, custodianship and ownership of objects in collections, as well as intellectual property issues and claims concerning intangible cultural heritage. Such disputes may further involve complex legal, as well as sensitive non-legal issues of a cultural, economic, ethical, historical, moral, political, religious, or spiritual nature; they may combine tangible and intangible matters in a single case; they may present challenges in terms of evidence and statutes of limitations; they may raise questions of customary law; they may involve considerable legal and other expenditure; they are often international in scope; and reputation and long-term relationships may be at stake.

Mediation offers a neutral forum that provides the flexibility as well as the required legal and technical expertise to resolve such disputes in a more efficient way that allows to take account of the specific elements set out above. Mediation is a time and cost effective alternative to public action in court. It further allows parties to find mutually satisfactory solutions on a more sustainable basis. Parties also have the possibility to opt for a confidential mediation process, which allows them to preserve relationships and reputation.

It is the policy of ICOM to encourage the amicable resolution of disputes regarding the ownership of objects in museum collections that allegedly were stolen or illegally exported from the country of origin and the early settlement of such disputes through voluntary settlement procedures rather than through litigation or political decisions. Noting that many claims and disputes concerning the ownership of museum collections, and legal claims against museums are leading to litigation that can be both lengthy and very costly, the 22nd General Assembly of ICOM in 2007 adopted Resolution No. 4 "Preventing Illicit Traffic and Promoting the Physical Return, Repatriation and Restitution of Cultural Property" which:

  • recommends the development of new and innovative methods to promote and facilitate return, repatriation, and restitution; and
  • urges ICOM members to support and initiate actions leading to physical repatriation, wherever applicable.
  • welcomes the decision of the Executive Council to adopt the active promotion of mediation in preference to legal actions, and to establish an ICOM panel of suitable, qualified, experienced, trained, and independent mediators, available to assist the parties in dispute resolution; and
  • recommends the use of the mediation process as a first recourse as suggested in the policy statement by Alissandra Cummins: "Promoting the use of Mediation in Resolution of Disputes over the Ownership of Objects in Museum Collections" (January 2006).


WIPO is active in a number of areas, including copyright, cultural heritage, traditional knowledge and traditional cultural expressions, often in consultation with cultural institutions, such as museums, archives and libraries, as well as with indigenous peoples and local communities and other stakeholders. The WIPO Arbitration and Mediation Center (WIPO Center) offers services on a not-for-profit basis for the resolution of disputes relating to intellectual property. As a recognized international and neutral dispute resolution provider, the WIPO Center administers under different Rules dispute resolution procedures, such as mediation, arbitration, expedited arbitration, and expert determination. It also develops tailored dispute resolution rules for specific intellectual property related sectors and entities. In particular, the WIPO Center offers services for the resolution of disputes relating to art and cultural heritage.

In an effort to give further effect to the mediation recommendations made by the ICOM Legal Affairs Committee in April 2005 and the above-mentioned Resolution No. 4 of the 22nd ICOM General Assembly in 2007, ICOM and the WIPO Center have joined their expertise and developed the ICOM-WIPO Mediation Rules.

The ICOM-WIPO Mediation Rules

The ICOM-WIPO Mediation Rules provide a tailored dispute resolution option for parties involved in disputes in ICOM areas of activity. These Rules have been adapted to take account of the specific dispute resolution needs in this area, and include in particular:

  • A special joint WIPO-ICOM List of Mediators, comprised of mediators with expertise and experience in art and cultural heritage and related areas;
  • Safeguards for mediator impartiality and independence;
  • Reference to the principles of the ICOM Code of Ethics for Museums in the conduct of the mediation;
  • Efficient timelines;
  • A reduced Schedule of Fees on a not-for-profit basis for the mediation process, with possibility to apply lower fees in exceptional circumstances;
  • Specific model mediation clauses and submission agreements;


Electronic Case Facility

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.

Good Offices

In disputes where no mediation agreement (clause or submission agreement) exists, WIPO and ICOM are available to carry out their good offices upon request. In light of the consensual nature of mediation, such good offices aim to facilitate the submission of disputes to mediation.

Under the good offices, an interested party who wishes to submit an existing dispute to mediation under the ICOM-WIPO Mediation Rules can request either ICOM or the WIPO Center to contact the other party and explore if the latter would be willing to consider agreeing to such submission. In such instances, ICOM and the WIPO Center provide procedural advice to the parties and facilitate the reaching of a mediation submission agreement. The good offices are provided free-of-charge and on a confidential basis.

Further Procedural Options

Finally, parties in mediations under the ICOM-WIPO Mediation Rules also have the possibility to combine the mediation procedure with other dispute resolution mechanisms, such as WIPO Arbitration, Expedited Arbitration, or Expert Determination.

 

Abbreviated Expressions

Article 1

In these Rules:

"Mediation Agreement" means an agreement by the parties to submit to mediation all or certain disputes which have arisen or which may arise between them; a Mediation Agreement may be in the form of a mediation clause in a contract or in the form of a separate contract;

"Mediator" includes a sole mediator or all the mediators where more than one is appointed;

"ICOM" means the International Council of Museums;

"ICOM Secretariat" means the General Secretariat of ICOM;

"WIPO" means the World Intellectual Property Organization;

"Center" means the WIPO Arbitration and Mediation Center;

"Mediation Rules" means the ICOM-WIPO Mediation Rules.

Words used in the singular include the plural and vice versa, as the context may require.

 

Scope of Application of Rules

Article 2

(a) The scope of the mediation procedure is intended to cover disputes relating to ICOM's areas of activities, including but not limited to return and restitution, loan and deposit, acquisition, and intellectual property, and involving public or private parties including but not limited to States, museums, indigenous communities, and individuals.

(b) Where a Mediation Agreement provides for mediation under the Mediation Rules, these Rules shall be deemed to form part of that Mediation Agreement. Unless the parties have agreed otherwise, these Rules as in effect on the date of the commencement of the mediation shall apply.

 

Commencement of the Mediation

Article 3

(a) A party to a Mediation Agreement that wishes to commence a mediation shall submit a Request for Mediation in writing to the ICOM Secretariat. It shall at the same time send a copy of the Request for Mediation to the other party.

(b) The Request for Mediation shall contain or be accompanied by:

(i) the names, addresses and telephone, telefax, e-mail or other communication references of the parties to the dispute and of the representative of the party filing the Request for Mediation;

(ii) a copy of the Mediation Agreement; and

(iii) a brief statement of the nature of the dispute.

(c) Communication of the Request for Mediation may take place by any means that provide a record of the communication, including by e-mail or other online options. This applies to all other communications in writing under these Rules.

(d) The ICOM Secretariat shall carry 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 in accordance with Article 2(a). The ICOM Secretariat shall endeavor to complete such review within 30 days from its receipt of the Request for Mediation. If it considers the Request for Mediation to be in order, it shall transmit the Request promptly to the Center. If it considers the Request for Mediation not to be in order, it shall send a refusal letter to the parties.

Article 4

The date of the commencement of the mediation shall be the date on which the Request for Mediation is received by the Center.

Article 5

The Center shall forthwith inform the parties in writing of the receipt by it of the Request for Mediation and of the date of the commencement of the mediation.

 

Communication

Article 6

The Center shall send to the ICOM Secretariat copies of case communications, excluding correspondence requiring confidentiality.

 

List of Mediators

Article 7

(a) A Selection Commission, composed of members from ICOM and the Center, shall maintain, in its discretion, a List of Mediators comprising mediators with specific expertise in art and cultural heritage and related areas.

(b) Mediators shall be appointed from the List, unless the parties agree to appoint a Mediator with relevant qualifications from outside the List.

 

Appointment of the Mediator

Article 8


(a) If the parties agree within seven days of the commencement of the mediation on the person of the mediator, or have agreed on another appointment procedure, the Center shall appoint, in consultation with the ICOM Secretariat, any mediator so selected, after confirming the requirements of Articles 10 and 11.

(b) If the parties cannot agree within seven days of the commencement of the mediation on the person of the mediator, or have not agreed on another appointment procedure, the mediator shall be appointed in accordance with the following list procedure:

(i) The Center shall as soon as possible send to each party an identical list of candidates, in the establishment of which it consults the ICOM Secretariat. Where possible, the list shall comprise the names of at least three candidates in alphabetical order. The list shall include or be accompanied by a statement of each candidate's qualifications. If the parties have agreed on any particular qualifications, the list shall contain only the names of candidates that satisfy those qualifications.

(ii) Each party shall have the right to delete the name of any candidate or candidates to whose appointment it objects and shall number any remaining candidates in order of preference.

(iii) Each party shall return the marked list to the Center (without obligation to send a copy to the other party) within seven days after the date on which the list is received by it. Any party failing to return a marked list within that period of time shall be deemed to have assented to all candidates appearing on the list.

(iv) Upon receipt by it of the lists from the parties, the Center shall, in consultation with the ICOM Secretariat, taking into account the preferences and objections expressed by the parties, invite a person from the list to be the mediator.

(v) If the lists which have been returned do not show a person who is acceptable as mediator to both parties, the Center shall be authorized to appoint the mediator in consultation with the ICOM Secretariat. The Center in consultation with the ICOM Secretariat shall similarly be authorized to do so if a person is not able or does not wish to accept the Center's invitation to be the mediator, or if there appear to be other reasons precluding that person from being the mediator, and there does not remain on the lists a person who is acceptable as mediator to both parties.

(c) Notwithstanding the provisions of paragraph (b), the Center in consultation with the ICOM Secretariat shall be authorized to appoint the mediator if it determines in its discretion that the procedure described in that paragraph is not appropriate for the case.

 

Nationality of the Mediator

Article 9

(a) An agreement of the parties concerning the nationality of the mediator shall be respected.

(b) If the parties have not agreed on the nationality of the mediator, such mediator shall, in the absence of special circumstances such as the need to appoint a person having particular qualifications, be a national of a country other than the countries of the parties.

 

Impartiality and Independence

Article 10

(a) The mediator shall be impartial and independent.

(b) The prospective mediator shall, before accepting appointment, disclose to the parties and the Center any circumstances that might give rise to justifiable doubt as to the mediator's impartiality or independence, or confirm in writing that no such circumstances exist.

(c) If, at any stage during the mediation, new circumstances arise that might give rise to justifiable doubt as to the mediator's impartiality or independence, the mediator shall promptly disclose such circumstances to the parties and the Center.

 

 

Availability, Acceptance and Notification

Article 11

(a) The mediator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the mediation to be conducted and completed expeditiously.

(b) The prospective mediator shall accept appointment in writing and shall communicate such acceptance to the Center.

(c) The Center shall notify the parties of the appointment of the mediator.

 

Representation of Parties and Participation in Meetings

Article 12

(a) The parties may be represented or assisted in their meetings with the mediator.

(b) Immediately after the appointment of the mediator, the names and addresses of persons authorized to represent a party, and the names and positions of the persons who will be attending the meetings of the parties with the mediator on behalf of that party, shall be communicated by that party to the other party, the mediator and the Center.

 

Conduct of the Mediation

Article 13

The mediation shall be conducted in the manner agreed by the parties. If, and to the extent that, the parties have not made such agreement, the mediator shall, in accordance with these Rules, determine the manner in which the mediation shall be conducted.

Article 14

(a) In the conduct of the mediation, the mediator and the parties shall bear in mind the ICOM Code of Ethics for Museums.

(b) Each party shall cooperate in good faith with the mediator to advance the mediation as expeditiously as possible.

Article 15

The mediator shall be free to meet and to communicate separately with a party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other party without the express authorization of the party giving the information.

Article 16

(a) As soon as possible after being appointed, the mediator shall, in consultation with the parties, establish a timetable for the submission by each party to the mediator and to the other party of a statement summarizing the background of the dispute, the party's interests and contentions in relation to the dispute and the present status of the dispute, together with such other information and materials as the party considers necessary for the purposes of the mediation and, in particular, to enable the issues in dispute to be identified.

(b) The mediator may at any time during the mediation suggest that a party provide such additional information or materials as the mediator deems useful.

(c) Any party may at any time submit to the mediator, for consideration by the mediator only, written information or materials which it considers to be confidential. The mediator shall not, without the written authorization of that party, disclose such information or materials to the other party.

 

Role of the Mediator

Article 17

(a) The mediator shall promote the settlement of the issues in dispute between the parties in any manner that the mediator believes to be appropriate, but shall have no authority to impose a settlement on the parties.

(b) Where the mediator believes that any issues in dispute between the parties are not susceptible to resolution through mediation, the mediator may propose, for the consideration of the parties, procedures or means for resolving those issues which the mediator considers are most likely, having regard to the circumstances of the dispute and any business relationship between the parties, to lead to the most efficient, least costly and most productive settlement of those issues. In particular, the mediator may so propose:

(i) an expert determination of one or more particular issues;

(ii) (expedited) arbitration; or

(iii) the submission of last offers of settlement by each party and, in the absence of a settlement through mediation, arbitration conducted on the basis of those last offers pursuant to an arbitral procedure in which the mission of the arbitral tribunal is confined to determining which of the last offers shall prevail.

 

Confidentiality

Article 18

No recording of any kind shall be made of any meetings of the parties with the mediator.

Article 19

Each person involved in the mediation, including, in particular, the mediator, the parties and their representatives and advisors, any independent experts and any other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of the mediation and may not, unless otherwise agreed by the parties and the mediator, use or disclose to any outside party any information concerning, or obtained in the course of, the mediation. Each such person shall sign an appropriate confidentiality undertaking prior to taking part in the mediation.

Article 20

Unless otherwise agreed by the parties, each person involved in the mediation shall, on the termination of the mediation, return, to the party providing it, any brief, document or other materials supplied by a party, without retaining any copy thereof. Any notes taken by a person concerning the meetings of the parties with the mediator shall be destroyed on the termination of the mediation.

Article 21

(a) Unless otherwise agreed by the parties, the parties shall not introduce as evidence or in any manner whatsoever in any judicial or arbitration proceeding information about:

(i) the existence of the mediation;

(ii) the identity of the parties;

(iii) any views expressed or suggestions made by a party with respect to a possible settlement of the dispute;

(iv) any admissions made by a party in the course of the mediation;

(v) any proposals made or views expressed by the mediator;

(vi) the fact that a party had or had not indicated willingness to accept any proposal for settlement made by the mediator or by the other party;

(vii) the outcome of the mediation.

(b) Notwithstanding paragraph (a), any such information may be disclosed to a third party, where:

(i) such information falls in the public domain, for example as a result of an action before a national court or other competent authority; or

(ii) it must be disclosed in order to comply with a legal requirement imposed on a party or in order to establish or protect a party’s legal rights against a third party; or

(iii) where the parties consent to disclose such information.

Article 22

(a) Unless otherwise agreed by the parties, the mediator, the Center and the ICOM Secretariat shall maintain the confidentiality of the mediation, any settlement agreement and, to the extent that they describe information that is not in the public domain, any information that is disclosed during the mediation, except to the extent necessary in connection with a court action or as otherwise required by law.

(b) The Center shall provide the ICOM Secretariat on a regular basis with statistical information about the mediations it administers under these Rules.

(c) The Center and the ICOM Secretariat may include information concerning the mediation in any aggregate statistical data that they publish concerning their activities, provided that such information does not reveal the identity of the parties or enable the particular circumstances of the dispute to be identified, unless this information is in the public domain.

 

 

Termination of the Mediation

Article 23

The mediation shall be terminated:

(i) by the signing of a settlement agreement by the parties covering any or all of the issues in dispute between the parties;

(ii) by the decision of the mediator if, in the mediator's judgment, further efforts at mediation are unlikely to lead to a resolution of the dispute; or

(iii) by a written declaration of a party at any time sent to the other party, the mediator and the Center.

Article 24

(a) Upon the termination of the mediation, the mediator shall promptly send to the Center a notice in writing that the mediation is terminated and shall indicate the date on which it terminated, whether or not the mediation resulted in a settlement of the dispute and, if so, whether the settlement was full or partial. The mediator shall send to the parties a copy of the notice so addressed to the Center.

(b) The Center shall communicate a copy of the said notice to the ICOM Secretariat and shall otherwise keep the notice of the mediator confidential and shall not, without the written authorization of the parties, disclose either the existence or the result of the mediation to any person, unless otherwise provided in these Rules in accordance with Article 22.

Article 25

Unless required by a court of law or authorized in writing by the parties, the mediator shall not act in any capacity whatsoever, otherwise than as a mediator, in any pending or future proceedings, whether judicial, arbitral or otherwise, relating to the subject matter of the dispute.

 

Administration Fee

Article 26

(a) The Request for Mediation shall be subject to the payment to the Center of an administration fee, the amount of which shall be fixed in accordance with the Schedule of Fees applicable on the date of the Request for Mediation.

(b) The administration fee shall not be refundable.

(c) No action shall be taken by the Center on a Request for Mediation until the administration fee has been paid.

(d) If a party who has filed a Request for Mediation fails, within seven days after a reminder in writing from the Center, to pay the administration fee, it shall be deemed to have withdrawn its Request for Mediation.

(e) In consultation with the ICOM Secretariat, the Center shall transfer fifty percent (50%) of the administration fee to the ICOM Secretariat.

 

Fees of the Mediator

Article 27

(a) The amount and currency of the fees of the mediator and the modalities and timing of their payment shall be fixed by the Center, after consultation with the ICOM Secretariat, the mediator and the parties.

(b) The amount of the fees shall, unless the parties and the mediator agree otherwise, be calculated on the basis of the hourly rates set out in the Schedule of Fees applicable on the date of the Request for Mediation, taking into account the amount in dispute, the complexity of the subject matter of the dispute and any other relevant circumstances of the case.

 

Deposits

Article 28

(a) The Center may, at the time of the appointment of the mediator, require each party to deposit an equal amount as an advance for the costs of the mediation, including, in particular, the estimated fees of the mediator and the other expenses of the mediation. The amount of the deposit shall be determined by the Center.

(b) The Center may require the parties to make supplementary deposits.

(c) If a party fails, within seven days after a reminder in writing from the Center, to pay the required deposit, the mediation shall be deemed to be terminated. The Center shall, by notice in writing, inform the parties and the mediator accordingly and indicate the date of termination.

(d) After the termination of the mediation, the Center shall render an accounting to the parties of any deposits made and return any unexpended balance to the parties or require the payment of any amount owing from the parties.

 

Costs

Article 29

Unless the parties agree otherwise, the administration fee, the fees of the mediator and all other expenses of the mediation, including, in particular, the required travel expenses of the mediator and any expenses associated with obtaining expert advice, shall be borne in equal shares by the parties.

 

Exclusion of Liability

Article 30

Except in respect of deliberate wrongdoing, the mediator, WIPO, the Center, ICOM and the ICOM Secretariat shall not be liable to any party for any act or omission in connection with any mediation conducted under these Rules.

 

Waiver of Defamation

Article 31

The parties and, by accepting appointment, the mediator agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the mediation shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded as a bar to any such action.

 

Suspension of Running of Limitation Period under the Statute of Limitations

Article 32

The parties agree that, to the extent permitted by the applicable law, the running of the limitation period under the Statute of Limitations or an equivalent law shall be suspended in relation to the dispute that is the subject of the mediation from the date of the commencement of the mediation until the date of the termination of the mediation.