Imagine this. You’ve recently purchased a Bruce Onabrakpeya artwork from a renowned gallery for millions of naira. This new prized possession comes with a “certificate of authenticity,” but soon after a leading expert on Bruce Onabrakpeya’s pieces remarks that the artwork may be inauthentic i.e. a fake. Immediately, the value of your priceless piece of art diminishes and you have lost the potential to get a handsome return on your investment. With these issues at hand, what do you do?
In the article titled “Authenticity in Art: Recent UK Case Law”, Sinéad Esler-Patel, Managing Associate at Mishcon de Reya stated “While issues of disputed authenticity and attribution in art abound, it is rare that such matters are aired in the courts. The art world is famously private, and reputations are closely guarded. The discovery that an artwork is a forgery or has been misattributed can damage the business and standing of everyone involved. Art market participants may choose to bury or privately settle such matters – even if that means absorbing a significant financial loss – rather than allow them to become publicly known.”
I can definitely attest to the fact that members of the Art community are very secretive and they apply the same level of secrecy to their transactions and disputes. For good reason too. Some time ago, our Firm was approached to resolve a dispute on behalf of a client who had infringed on the copyright of a photographer. Our advice was that the matter be settled by the parties out of court, in order to save time and also guard the reputation of our client.
There are moments when art-related disputes can be complex and involve sensitive issues such as authenticity, provenance, copyright, and moral rights. They may also involve the reputations of parties, some of which are usually guarded jealously. This is where Alternative Dispute Resolution mechanisms such as Mediation and Arbitration come in. ADR offers a flexible, confidential, and efficient way of resolving commercial-related disputes, and it’s a great way of resolving art-related disputes.
Traditional litigation is often very time-consuming, sometimes taking months or years to be resolved, however, this is not the case in ADR, as disputes can be resolved in a matter of days or even weeks. Furthermore, another primary advantage of ADR is the confidentiality that it offers. It is essential in the art world that parties be able to discuss sensitive issues without fear of public exposure, which can help preserve their professional standing and personal relationships.
I made this point clear to a group of artists recently where I advised that Litigation should be used as a last resort. Moreover, asides from the fact that litigation can be very expensive, with legal fees, court costs, and the potential for substantial damages. Mediation and ADR, on the other hand, are generally more cost-effective. The process is quicker, and the costs are typically lower, making it a more accessible option for resolving disputes. This cost-effectiveness can be especially beneficial for artists, collectors, and smaller institutions that may not have the financial resources for prolonged litigation.
The legal system can be slow, with cases taking months or even years to resolve. Mediation and ADR, by contrast, are typically much faster. The process can often be completed in a matter of days or weeks, allowing parties to resolve their disputes and move forward more quickly. This speed is particularly important in the art world, where timing can be critical for exhibitions, sales, and other events.
It is important to note that art-related disputes often involve ongoing relationships between parties, such as artists and galleries, collectors and dealers, or museums and donors. Mediation and ADR allow these relationships to be preserved by fostering a collaborative rather than adversarial approach to dispute resolution. The mediator or neutral third party helps the parties find common ground and reach a mutually acceptable solution, which can strengthen their relationship rather than damage it.
Mediation and ADR offer a high degree of flexibility and creativity in resolving disputes. Unlike litigation, which is bound by strict legal procedures and precedents, mediation allows parties to explore a wide range of solutions that may not be available in court. This flexibility can be particularly valuable in art disputes, where non-legal issues such as emotional, cultural, and ethical considerations play a significant role. Mediators can help parties address these issues and find innovative solutions that satisfy everyone’s interests.
There are several cases that highlight the benefits of mediation and ADR in resolving art-related disputes. For example, the dispute over the Canon Tables of the Zeyt’un Gospels between the Western Prelacy of the Armenian Apostolic Church of America and the J. Paul Getty Museum was successfully resolved through mediation in 2015. The parties reached a settlement that addressed the cultural and historical significance of the artifacts while preserving their relationship.
Other cases include the disputes resulting from the Momart Warehouse Fire, where a warehouse owned by Momart burned down in 2004 causing the destruction of a number of contemporary artworks by renowned British artists of an estimated value of £ 40 million; or the case between the Tasmanian Aboriginal Centre and Natural History Museum in London. Another recent broadly commented cases included the conflict over the rights to Henri Matisse’s “Portrait of Greta Moll” exhibited in the National Gallery in London or the dispute between Russian art collector Dmitry Rybolovlev and Swiss art dealer Yves Bouvier.[i]
Personally, being a fellow of the Chartered Institute of Mediation and Conciliators has helped me approach disputes on behalf of clients in ways that seek to preserve the business relationship between the parties, save time, and also maintain their confidentiality. Particularly, my specialized knowledge and experience in the art world is invaluable for resolving art–related disputes.
Mediation and alternative dispute resolution offer a valuable and effective way to resolve art-related disputes. Their confidentiality, cost-effectiveness, flexibility, and speed make them an attractive alternative to traditional litigation. By preserving relationships and allowing for creative solutions, mediation and ADR can help parties find mutually acceptable outcomes that honour the cultural and artistic significance of the issues at hand.
Endnotes
[i] Kluwer Mediation Blog. (2018). The Art of Mediation and Mediation in Art Disputes. [Online]. Kluwer Mediation Blog. Last Updated: August 19, 2018. Available at: https://mediationblog.kluwerarbitration.com/2018/08/19/art-mediation-mediation-art-disputes/ [Accessed 12 February 2025].