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3 Art Antiquity & L. 31 (1998)
Mediation and Art Disputes

handle is hein.journals/artniqul3 and id is 35 raw text is: MEDIATION AND ART DISPUTES Sir Anthony Mason AC KBE* It is conveiiient in this poper to discuss both coiiliation and nediation under the title 'Mediation and Art Disputes'. There is a difference between conciliation and mediation, though it is not a1wavs recognised or observed. The difference between the two is that conciliation is, in general, formall structured nid, more importantlv, the conciliator is authorised to propose to the parties the terns of his proposal. I anY, jor an agreement to the dispute. It is said that the inediitor, on the other hand, is not nuthorised to coniununicate to the parties his proposals for settleient of the dispute: his fumetion is to ecourIge the parties to suggest their own proposnls for settlement. The realitv, however, Inay be otherwise. Conciliotioi and nediation ire sometimes used as if they were interchaingeable terns. In practice, the border line between thein does not ailways reflect the diffireice. 7he pro-active inediator, especially in the United Stes and Australia. sometimes begins to resemble the concilintor. That is one renson why, in the remarks which fidlow, I shll niot diffirentiate betweeni concilition and iediationi unless it becoles necessary to do so. The Advantages of Mediation in Art Disputes So far, mediation has not been widely employed in the United Kingdom or Australia as a means of resolving art disputes. One instance of resort to mediation to resolve such a dispute concerned the title to certain papers of the Durack family in Western Australia whose land holdings in the northern part of that state were of vast extent. Dame Mary Durack Miller, the author of Kinigs ii Grass Cost/es, an account of life in outback Australia, entrusted the papers to the Battye Library in Perth in 1959 or 1960. The papers were redelivered to her at her request and were not returned to the Library. Members of Dame Mary's family claimed that the original deposit was for the purpose of safekeeping only and that she was entitled to retain them on redelivery to her. After negotiations for sale of the papers to the National Library in Canberra broke down, the members of the family asserted that if the State Library Board wished to have the papers it should submit to an arbitration and accept the arbitrated value. The Board rejected this proposal, relying on documents signed by Dame Mary when the papers were returned to her. Those documents indicated that the papers were then 'lent' to her. After litigation was commenced, the parties agreed to a mediation by Sir Laurence Street, the former Chief Justice of New South Wales, who is a very experienced and successful mediator. The dispute was settled on undisclosed terms. That case is an illustration of an art dispute which lends itself to mediation. It was a dispute in which both parties might have sustained some damaging publicity had the matter gone to trial and the costs of going to court would have been larger than the costs of mediation. Confidentiality is, of course, one of the main advantages of mediation. That is why mediation is not uncommonly preferred by institutions and parties who are anxious to avoid publicity. Mediation is therefore attractive as a mode of resolving a dispute between public authorities. When such a Chancellor, University of New South Wales National Fellow, Research School of Social Sciences, Australian National University. 31

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