1. Consensual Process
ICOM-WIPO Mediation is a consensual process based on party agreement. For future disputes, such party agreement is provided if a relevant mediation clause inserted in a contract refers disputes to ICOM-WIPO Mediation. For existing disputes in situations where no such contract or mediation clause exists, party agreement can be reached if the parties sign a mediation agreement submitting the existing dispute to ICOM-WIPO Me-diation. As indicated above, parties can use the recommended ICOM-WIPO clause and submission agreement19.
In the drafting of such clauses and submission agreements, it is generally advised to use the recommended model text to make sure that all the necessary elements are included.
For example, it is essential that correct reference be made to the desired institutional Rules, i.e., the ICOM-WIPO Mediation Rules. Ambiguous wording such as “Mediation in Geneva” without any mention of the institution would be problematic. Other elements useful to define are the place of mediation and the language of the proceedings, although this may also be done at a later stage (which may however delay the proceedings). The model text can of course be adapted and completed by further elements if the parties so wish. For example, in a submission agreement, parties sometimes already indicate the name of the mediator if they already happen to know a competent person. They may also provide that in case the mediation is not successful, the dispute be submitted to arbitra-tion under the WIPO Arbitraarbitra-tion or Expedited Arbitraarbitra-tion Rules.
In cases where no party agreement exists yet, ICOM and the WIPO Arbitration and Me-diation Center are available to provide their good offices on a confidential basis and free-of-charge to facilitate the submission of a dispute to ICOM-WIPO mediation. Typically in such situations one party contacts ICOM or the WIPO Arbitration and Mediation Center and requests the institution to contact the other party. The institution then explains the mediation procedure to the other party and the process of submission, thereby explor-ing whether that party would be willexplor-ing to accept such submission. The institution can then also assist in the drafting of the mediation submission agreement if the parties wish.
2. Party Autonomy and Flexibility
The ICOM-WIPO Mediation Rules are based on principles of party autonomy and flexi-bility. The parties have control over the entire mediation process and can define the
19 See www.wipo.int/amc/en/center/specific-sectors/art/icom/clauses/ (24.04.2012).
elements of the mediation procedure. The Rules provide a flexible framework and allow the parties to adapt the procedure to their specific needs by party agreement if they wish.
For example, parties can agree on the type of mediation. Such decision often depends on the parties’ cultural and legal backgrounds. While other models exist, the two most common types of mediation are facilitative and evaluative mediation. In facilitative mediation, the mediator “endeavors to facilitate communication between the parties and to help each side to understand the other’s perspective, position and interests in relation to the dispute.”20 In evaluative mediation “the mediator provides a non-binding assess-ment or evaluation of the dispute, which the parties are then free to accept or reject as the settlement of the dispute.”21
Further, no decision can be imposed by the mediator upon the parties. Each party is also free to abandon the mediation process at any time by a written declaration. Hence, the risk involved is relatively low for the parties. This is another reason to try ICOM-WIPO Mediation as there is not much to lose but all to win in a mutually satisfactory process.
3. Mediator Appointment
Once the ICOM Secretariat has confirmed that the Request for Mediation is within the scope of the Rules and has transmitted it to the WIPO Arbitration and Mediation Center, the latter announces the commencement of the mediation and informs the parties about the further conduct of the process. In the administration of the procedure, the WIPO Arbitration and Mediation Center uses its case management system, which includes assistance with the appointment of mediator, fee management, electronic case communi-cation tools, such as WIPO ECAF22, as well as logistical and technical assistance.
The success of mediation depends to a large degree on the quality of the mediator. This is why ICOM and the WIPO Arbitration and Mediation Center have been taking great care in establishing the ICOM-WIPO List of Mediators. The List comprises mediators who are qualified in different areas of art and cultural heritage and come from a wide range of countries. The List is open and further candidates are being added in order to cater for specific needs in art and cultural heritage disputes.
While usually a sole mediator is appointed, sometimes parties prefer to have several co-mediators, for example in cases involving multiple parties or parties from very different cultural backgrounds. Under the ICOM-WIPO Mediation Rules, parties are free to agree
20 Quoted from Guide to WIPO Mediation, WIPO Publication 449E, pp. 4 et seqq, www.wipo.int/freepublications/en/arbitration/449/wipo_pub_449.pdf (24.04.2012).
21 Ibid., p. 5.
22 On the WIPO Electronic Case Facility, see www.wipo.int/amc/en/ecaf/index.html (24.04.2012).
C. The Mediation Process under the ICOM-WIPO Mediation Rules
1. Consensual Process
ICOM-WIPO Mediation is a consensual process based on party agreement. For future disputes, such party agreement is provided if a relevant mediation clause inserted in a contract refers disputes to ICOM-WIPO Mediation. For existing disputes in situations where no such contract or mediation clause exists, party agreement can be reached if the parties sign a mediation agreement submitting the existing dispute to ICOM-WIPO Me-diation. As indicated above, parties can use the recommended ICOM-WIPO clause and submission agreement19.
In the drafting of such clauses and submission agreements, it is generally advised to use the recommended model text to make sure that all the necessary elements are included.
For example, it is essential that correct reference be made to the desired institutional Rules, i.e., the ICOM-WIPO Mediation Rules. Ambiguous wording such as “Mediation in Geneva” without any mention of the institution would be problematic. Other elements useful to define are the place of mediation and the language of the proceedings, although this may also be done at a later stage (which may however delay the proceedings). The model text can of course be adapted and completed by further elements if the parties so wish. For example, in a submission agreement, parties sometimes already indicate the name of the mediator if they already happen to know a competent person. They may also provide that in case the mediation is not successful, the dispute be submitted to arbitra-tion under the WIPO Arbitraarbitra-tion or Expedited Arbitraarbitra-tion Rules.
In cases where no party agreement exists yet, ICOM and the WIPO Arbitration and Me-diation Center are available to provide their good offices on a confidential basis and free-of-charge to facilitate the submission of a dispute to ICOM-WIPO mediation. Typically in such situations one party contacts ICOM or the WIPO Arbitration and Mediation Center and requests the institution to contact the other party. The institution then explains the mediation procedure to the other party and the process of submission, thereby explor-ing whether that party would be willexplor-ing to accept such submission. The institution can then also assist in the drafting of the mediation submission agreement if the parties wish.
2. Party Autonomy and Flexibility
The ICOM-WIPO Mediation Rules are based on principles of party autonomy and flexi-bility. The parties have control over the entire mediation process and can define the
19 See www.wipo.int/amc/en/center/specific-sectors/art/icom/clauses/ (24.04.2012).
elements of the mediation procedure. The Rules provide a flexible framework and allow the parties to adapt the procedure to their specific needs by party agreement if they wish.
For example, parties can agree on the type of mediation. Such decision often depends on the parties’ cultural and legal backgrounds. While other models exist, the two most common types of mediation are facilitative and evaluative mediation. In facilitative mediation, the mediator “endeavors to facilitate communication between the parties and to help each side to understand the other’s perspective, position and interests in relation to the dispute.”20 In evaluative mediation “the mediator provides a non-binding assess-ment or evaluation of the dispute, which the parties are then free to accept or reject as the settlement of the dispute.”21
Further, no decision can be imposed by the mediator upon the parties. Each party is also free to abandon the mediation process at any time by a written declaration. Hence, the risk involved is relatively low for the parties. This is another reason to try ICOM-WIPO Mediation as there is not much to lose but all to win in a mutually satisfactory process.
3. Mediator Appointment
Once the ICOM Secretariat has confirmed that the Request for Mediation is within the scope of the Rules and has transmitted it to the WIPO Arbitration and Mediation Center, the latter announces the commencement of the mediation and informs the parties about the further conduct of the process. In the administration of the procedure, the WIPO Arbitration and Mediation Center uses its case management system, which includes assistance with the appointment of mediator, fee management, electronic case communi-cation tools, such as WIPO ECAF22, as well as logistical and technical assistance.
The success of mediation depends to a large degree on the quality of the mediator. This is why ICOM and the WIPO Arbitration and Mediation Center have been taking great care in establishing the ICOM-WIPO List of Mediators. The List comprises mediators who are qualified in different areas of art and cultural heritage and come from a wide range of countries. The List is open and further candidates are being added in order to cater for specific needs in art and cultural heritage disputes.
While usually a sole mediator is appointed, sometimes parties prefer to have several co-mediators, for example in cases involving multiple parties or parties from very different cultural backgrounds. Under the ICOM-WIPO Mediation Rules, parties are free to agree
20 Quoted from Guide to WIPO Mediation, WIPO Publication 449E, pp. 4 et seqq, www.wipo.int/freepublications/en/arbitration/449/wipo_pub_449.pdf (24.04.2012).
21 Ibid., p. 5.
22 On the WIPO Electronic Case Facility, see www.wipo.int/amc/en/ecaf/index.html (24.04.2012).
on the person of the mediator. They can select someone from the ICOM-WIPO List of Mediators or outside that List. If the parties do not reach agreement on the mediator, the mediator is appointed through a “List Procedure”23.
Through this List procedure, the WIPO Arbitration and Mediation Center first consults the parties about the required qualifications of the mediator, such as expertise, experi-ence and nationality. It then sends, in consultation with ICOM, a list of qualified media-tor candidates to the parties, who can agree on a candidate or rank them according to their preferences. The WIPO Arbitration and Mediation Center then requests the chosen mediator to sign a declaration of impartiality and independence24 and to confirm his/her availability25, and appoints the mediator accordingly.
4. Efficient and Ethical Conduct of the Mediation
Once the mediator is appointed, he/she establishes a first contact with the parties, and the WIPO Arbitration and Mediation Center organizes a preliminary conference, which often takes the form of a telephone conference. At the preliminary conference the parties and the mediator usually set up a procedural timetable, determine the persons who will par-ticipate at the mediation meeting(s), and agree on the documents and statements that are to be submitted to the mediator.
The mediator’s role is to promote the settlement of the dispute. In that effort, the media-tor usually holds one or several mediation meetings with the parties and their representa-tives. The mediator can also meet separately with each party in so-called “caucus” meet-ings26. The information provided in such meetings cannot be disclosed to the other party, unless the party that provided it expressly authorizes the mediator to do so. Caucus meet-ings can be an efficient method for the mediator to help identifying the underlying inter-ests of the parties, their alternatives and readiness for compromise and certain solutions.
In the conduct of the mediation, the parties are to cooperate in good faith with the media-tor to advance the mediation as expeditiously as possible27. In addition, the ICOM-WIPO Mediation Rules provide that the mediator and the parties shall bear in mind the ICOM Code of Ethics for Museums in the conduct of the mediation28. The Code was adopted in 1986 and revised in 2004. It provides a minimum standard for museums
23 See article 8 ICOM-WIPO Mediation Rules.
24 See article 10.
25 See article 11.
26 See article 15.
27 See article 14.b.
28 See article 14.a. The ICOM Code of Ethics for Museums is available at: http://icom.museum/ filead-min/user_upload/pdf/Codes/code2006_eng.pdf (24.04.2012).
through professional principles and guidelines29. For example, it includes guidance on how to deal with requests for return or restitution from a country or people of origin30. It also provides that museum policy should acknowledge international legislation, such as the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Expert and Transfer of Ownership of Cultural Property of 1970, as well as other relevant Conventions31. These and other substantive principles of the Code may well be used by parties as a basis for the identification of solutions of the dispute.
5. Confidentiality
The ICOM-WIPO Mediation Rules contain detailed provisions on confidentiality32. Reputation and integrity are important for museums and other stakeholders in the art and cultural heritage sector, which is why confidentiality may be key in the resolution pro-cess. It may also be a crucial aspect when sacred traditional material is involved33. There are of course circumstances in which parties prefer or are required by law to disclose certain elements of the dispute. Such exceptions are provided for in the ICOM-WIPO Mediation Rules, based on legal requirements or party agreement.
6. End of the Mediation
The mediation can be concluded in a short time frame. Once the parties have agreed to mediate, it may take only a few months from the commencement of the mediation to the settlement. For example, in the recent mock mediation mentioned above the simulated ICOM-WIPO mediation process took about three months34.
The mediator helps the parties to identify possible solutions. In mediation parties can adopt sustainable win-win solutions that may help them to preserve their relationship or form a basis for future collaboration. Especially in art and cultural heritage disputes parties can explore creative solutions beyond monetary damages. Once the parties have agreed on a solution, they usually formalize the outcome in a settlement agreement. The settlement agreement has the force of a contract between the parties and can be enforced under general contract law.
29 See Preamble of the ICOM Code of Ethics for Museums.
30 See principles 6.2 and 6.3 of the ICOM Code of Ethics for Museums.
31 See principle 7 of the Code.
32 See articles 18–22.
33 On the confidentiality implications in art and cultural heritage dispute resolution, see also THEURICH, Art and Cultural Heritage Dispute Resolution (cit. n. 1), pp. 17 et seqq.
34 See www.wipo.int/export/sites/www/amc/en/docs/icomoct2011.pdf (24.04.2012) (cit. n. 14).
on the person of the mediator. They can select someone from the ICOM-WIPO List of Mediators or outside that List. If the parties do not reach agreement on the mediator, the mediator is appointed through a “List Procedure”23.
Through this List procedure, the WIPO Arbitration and Mediation Center first consults the parties about the required qualifications of the mediator, such as expertise, experi-ence and nationality. It then sends, in consultation with ICOM, a list of qualified media-tor candidates to the parties, who can agree on a candidate or rank them according to their preferences. The WIPO Arbitration and Mediation Center then requests the chosen mediator to sign a declaration of impartiality and independence24 and to confirm his/her availability25, and appoints the mediator accordingly.
4. Efficient and Ethical Conduct of the Mediation
Once the mediator is appointed, he/she establishes a first contact with the parties, and the WIPO Arbitration and Mediation Center organizes a preliminary conference, which often takes the form of a telephone conference. At the preliminary conference the parties and the mediator usually set up a procedural timetable, determine the persons who will par-ticipate at the mediation meeting(s), and agree on the documents and statements that are to be submitted to the mediator.
The mediator’s role is to promote the settlement of the dispute. In that effort, the media-tor usually holds one or several mediation meetings with the parties and their representa-tives. The mediator can also meet separately with each party in so-called “caucus” meet-ings26. The information provided in such meetings cannot be disclosed to the other party, unless the party that provided it expressly authorizes the mediator to do so. Caucus meet-ings can be an efficient method for the mediator to help identifying the underlying inter-ests of the parties, their alternatives and readiness for compromise and certain solutions.
In the conduct of the mediation, the parties are to cooperate in good faith with the media-tor to advance the mediation as expeditiously as possible27. In addition, the ICOM-WIPO Mediation Rules provide that the mediator and the parties shall bear in mind the ICOM Code of Ethics for Museums in the conduct of the mediation28. The Code was adopted in 1986 and revised in 2004. It provides a minimum standard for museums
23 See article 8 ICOM-WIPO Mediation Rules.
24 See article 10.
25 See article 11.
26 See article 15.
27 See article 14.b.
28 See article 14.a. The ICOM Code of Ethics for Museums is available at: http://icom.museum/ filead-min/user_upload/pdf/Codes/code2006_eng.pdf (24.04.2012).
through professional principles and guidelines29. For example, it includes guidance on how to deal with requests for return or restitution from a country or people of origin30. It also provides that museum policy should acknowledge international legislation, such as the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Expert and Transfer of Ownership of Cultural Property of 1970, as well as other relevant Conventions31. These and other substantive principles of the Code may well be used by parties as a basis for the identification of solutions of the dispute.
5. Confidentiality
The ICOM-WIPO Mediation Rules contain detailed provisions on confidentiality32. Reputation and integrity are important for museums and other stakeholders in the art and cultural heritage sector, which is why confidentiality may be key in the resolution
The ICOM-WIPO Mediation Rules contain detailed provisions on confidentiality32. Reputation and integrity are important for museums and other stakeholders in the art and cultural heritage sector, which is why confidentiality may be key in the resolution