The debate over art restitution has gained significant momentum in recent years, with museums, collectors and governments increasingly facing calls to return cultural objects to their countries of origin.
The issue itself is far from new, but it is undeniable that discussions on restitution have intensified, particularly in relation to the means to find a solution to these disputes (see here for a discussion of the advantages of alternative dispute resolution).
Successful resolutions of restitution disputes through mediation
Although mediation is confidential by nature, there have been reported restitution cases resolved through mediation.
For example, since the 1980s, the Tasmanian Aboriginal Centre ('TAC') made several applications to the Natural History Museum of London ('NHM') for the return of 17 Aboriginal human remains looted during colonial times. The case was referred to the High Court in London, which proposed mediation. The dispute was finally settled by an agreement resulting from the mediation process. The agreement put an end to the legal proceedings and provided the repatriation of the 17 human remains to Tasmania. 2
Mediation is often used in the context of Nazi-looted art restitution disputes (find out more here). In 2015, the heirs of a Jewish businessman requested the City of Düsseldorf for the restitution of a painting by Max Leon Flemming that he had sold in order to flee Germany and secure a living for himself and his family. In 2018, the parties agreed to mediation under the auspices of the 'Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property'. 3 In view of the close connection between the persecution and the sale of the painting, the German Advisory Commission recommended the restitution to the heirs, and the painting was ultimately returned in January 2022.4
Growing international recognition of mediation for art restitution disputes
Mediation is obtaining growing recognition as a means to solve commercial disputes. The Singapore Convention on Mediation ('Singapore Convention')5 was adopted on 20 December 2018 by the UN General Assembly and provides a uniform and efficient framework for the recognition and enforcement of mediated settlement agreements related to 'international commercial disputes'6 by the courts of a contracting State. So far, 57 States have signed the Convention, and 12 States have ratified it. The UK signed the Convention on 3 May 2023, but ratification has not yet taken place.
In the past few decades, international institutions have promoted negotiated settlement, with special regard to mediation for art restitution disputes.
UNESCO created in 1978 its Intergovernmental Committee on Return and Restitution ('ICPRCP') which seeks to facilitate mediation between Member States in restitution disputes.
As noted above, many disputes involve museums and it is worth emphasising that the International Council of Museums ('ICOM'), in cooperation with the WIPO Arbitration and Mediation Centre, has adopted the ICOM-WIPO Mediation Rules. In 2011, the Art and Cultural Heritage Mediation Program was put in place to provide guidance in art-related disputes.
We also look forward to the launch of the new German 'Arbitral Tribunal for Nazi-looted Art' which may provide another forum through which parties can explore resolution through mediation.
Mediation: tailor-made solutions for complex disputes
Restitution disputes tend to entail a wide range of parties involving emotional, historical and moral arguments that extend beyond legal boundaries. This explains why most of these disputes are best addressed through mediation.
The key advantage of mediation is its flexible and tailor-made approach. Mediation can be defined as an out-of-court negotiation assisted by one or more third parties ('the mediator') who are impartial as to the parties and neutral on the issues in the dispute. Unlike a judge or arbitrator, mediators do not have the authority to make binding decisions, which means that the resolution reflects the voluntary agreement of the parties involved. The outcome is usually a settlement agreement (i.e., effectively a contract) between the parties involved in the mediation.
Parties should be prepared to give up certain interests in order to find common ground. However, the solutions that mediators can propose are far broader than those used by a State court, which can only grant legal remedies which form part of the claim that is filed. The mediator will guide the parties to firstly recognise what the real interests are in the case, which always go far beyond legal boundaries, and help them to find innovative solutions which will work for everyone and assist in drawing a line under the dispute without having to go through a protracted and public court procedure.
In the NHM case, the mediator succeeded in convincing the parties to agree to a suitable compromise. The Aboriginals recognised the importance for the NHM to preserve the DNA samples collected, while the NHM scientists in turn agreed that the remains and all relevant documentation had to be handed to a Tasmanian medical facility.8
An example illustrating the variety of cumulative solutions in a single case can be found in the one opposing the two Swiss cantons of St. Gallen and Zurich regarding a number of cultural assets seized by the canton of Zurich during the religious wars in the region in the 18th century. Such a dispute was resolved through mediation and the settlement included simultaneously i) restitution, ii) recognition of the particular cultural importance of unreturned goods, iii) long-term loan, iv) donation and v) execution of a copy of one of the cultural goods in question.9
Conclusion
As discussions around cultural property and historical injustices continue to evolve, mediation emerges as a valuable approach in art restitution claims – where legal complexity intersects with emotional, moral and historical grievances. Unlike traditional litigation, mediation provides a confidential and open forum to enable parties to express not just their legal positions but also their moral, financial, reputational, ethical and all other concerns in a flexible and confidential fashion under the guidance of an experienced neutral mediator who helps parties to find a negotiated acceptable solution.
Footnotes
1 For the sake of clarity, the term "restitution" in this article is described as the process of returning art and cultural objects to their original owners or place of origin.
2 Marie Cornu and Marc-André Renold, "New Developments in the Restitution of Cultural Property, Alternative Means of Dispute Resolution," International Journal of Cultural Property 2010, 17, pp. 1-32, p. 13.
3 Following the adoption of the Washington Principles in December 1998, although 44 States endorsed these principles, only five countries have established tailor-made restitution commissions (Germany, Austria, France, Netherlands and the United Kingdom).
4 Christoph R. Schreinmoser, Morgane Desboeufs, Marc-André Renold, "Case Foxes – Grawi Heirs v. City of Düsseldorf", Platform ArThemis, Centre of Art-Law, University of Geneva.
5 United Nations Convention On International Settlement Agreements Resulting from Mediation, 20 December 2018.
6 United Nations Convention On International Settlement Agreements Resulting from Mediation, 20 December 2018, Art. 1.
7 https://committees.parliament.uk/publications/40044/documents/195523/default/
8 Anne Laure Bandle, Alessandro Chechi, Marc-André Renold, "Case 17 Tasmanian Human Remains – Tasmanian Aboriginal Centre and Natural History Museum London", Platform ArThemis, Art-Law Centre - University of Geneva.
9 Anne Laure Bandle, Raphael Contel, Marc-André Renold, "Case Ancient Manuscripts and Globe – Saint-Gall and Zurich", Platform ArThemis, Art-Law Centre, University of Geneva; Public Settlement Agreement between Canton of St. Gallen and Canton of Zurich, 27 April 2006.
First published by Antiques Trade Gazette on 16 August 2025.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
