Does mediation have a role in resolving conflict related to cultural property: the interface between public institutions, industry groups and the community

Ms Helen Shurven1

1Murdoch University, Murdoch, Australia

The presentation will outline a research project which will canvass how public museums resolve issues related to cultural property.  There are many ways of looking at ‘cultural property’ (which will be explored during the research project).  A seminal publication in the area describes it as follows:

‘Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in international commerce; but it may also be thought of as objects endowed with an intrinsic value as expressions of human creativity and as part of a unique or very special tradition of human skill and craft that today we call ‘intangible cultural heritage’ .

The research focuses on moveable, tangible objects/items and not on intangible objects/items or values.  The research explores what mechanisms public museums currently use to resolve conflict related to cultural property, which may include court based, mediation, conciliation or others.  The research does not focus on cultural property in private hands.  As such, the focus is very much on the intersection between academia, governments, industry and the community.

If museums already use mediation as a method of resolving issues, the effectiveness of that to date will be explored.  If they do not, the impediments to using mediation will be examined, including whether there are any mitigating factors that could encourage museums to use mediation (should they feel it would be useful).

There is evidence which suggests trafficking in cultural property is increasing (see for example https://www.unodc.org/unodc/en/organized-crime/intro/emerging-crimes/trafficking-in-cultural-property.html). As such, it is likely that conflict about cultural property between museums and other groups, entities or individuals within various communities will increase in the future.  It is likely that museums will be working on policies to guide their thinking and operations in such an environment.  This research will take three geographical areas, analyse the approach from museums in each area, and examine whether there are any significant similarities or differences between them.  The research will also look at whether any learnings can be gleaned from each approach.  Such learnings may be used by museums to inform their policy approach to issues related to cultural property, including issues related to illicit trafficking of cultural objects.

There has been some research around this area (see for example Thérèse O’Donnell (2011) The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa? and Francesco Francioni (2011) The Human Dimension of International Cultural Heritage Law: An Introduction).  And some brief research about dispute resolution in this context (see for example Judge Arthur Tompkins (2016) Resolving Nazi-era looted art disputes by ADR processes).  However, much of this research combines various types of dispute resolution (such as court and mediation), various institutions (such as museums and art galleries), and various legal jurisdictions (for example, criminal and civil).

This research will use a socio-legal method to examine the systems available to participants in such conflicts and their limits in a social context.  The approach will be jointly a comparative and empirical one, looking at museums in the three geographical areas, and conducting interviews with people within these museums who have been involved in, or would be likely to be involved in, these issues should they arise.  This would allow an insight into the operation of the law in a practical sense .

Interviews will focus on evidence of the issues faced by public museums as holders (or potential purchasers) of cultural property.  (This may also have implications even for donated items).

Structured interview questions will be prepared for part of the interview, with time set aside for unstructured discussion.  Respondents’ answers will be coded using a consistent scoring/rating to ensure the results are credible and describe as true a picture as possible of what is occurring in each geographical area.  The ethics of such research will also be explored.

Given the proposed number of interviews, a potential limitation levelled at the research could be a lack of representativeness.  However, the intention of the research ‘is not aimed at making claims of representativeness – rather the [researcher is] aiming to expand knowledge about the things that can happen and how they are interpreted in a particular social world (see Associate Professor D Watkins and Professor M Burton (2018) Research Methods in Law (2nd Ed) Routledge at 73) .  This knowledge expansion will focus on an understanding of the issues facing public museums in relation to cultural property and how these interact with the possibility of mediation offering a practical resolution tool.

The oral presentation will focus on what is currently known in the area of cultural property disputes (including the illicit trafficking of cultural property), and where the research is hoping to take this knowledge.


Biography:

Ms Helen Shurven is currently a part-time doctoral student at the law school at Murdoch University.  Helen is an accredited mediator under the Australian National Mediator Standards and has been mediating since 1993, including in a cross cultural context. Helen is a Tribunal member in Australia and currently conducts mediations between multiple parties, in city and country locations.  Helen also conducts arbitrations in matters where parties cannot reach agreement.  Her arbitral decisions can be subject to appeal to the Federal Court of Australia.  She has published over 500 decisions, with no successful appeals made against those decisions to date.

Helen has a Bachelor of Arts with Honours in Psychology from the University of Western Australia and a Bachelor of Laws and Master of Education from Murdoch University.  She was admitted to practice as a barrister and solicitor of the Supreme Court of Western Australia in 1997.

She was appointed to the Australian Dispute Resolution Advisory Council in 2019, is a member of the Australian Mediation Association and has been an adjudicator for the Schools Conflict Resolution and Mediation Program since 2003. She has also been a member of the Council of Australasian Tribunals since 2013. She was a Board member for Relationships Australia (WA) from 2008-2016, serving as President for three of those years.

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