Museum trustees are under a Fiduciary Duty to consider entering into Mediation when a Cultural Heritage dispute arises and litigation is likely.

While Museum Trustees in England and Wales are not under a general duty to enter into Mediation, their Fiduciary Duty of Care and Duty of Loyalty to the institution can in effect require Mediation, where otherwise engaging in expensive litigation without trying ADR would amount to a failure to act in the Museum’s best interests, thereby potentially exposing Trustees to a claim for Breach of Duty.

Disputes involving indigenous communities or foreign states often require balancing sensitive political, and cultural claims that traditional legal frameworks may not address as effectively as an interest-focused Mediation process.

Even where litigation is procedurally barred, Mediation allows Trustees to resolve valid claims while protecting the Museum’s reputation, which is a key intangible asset.

If trustees are irreconcilably divided over a claim, their overriding Fiduciary Duty to ensure effective governance, requires them to find a solution.

Allowing a dispute to ‘paralyse’ the Museum’s operations would be a Breach of Duty.

Since Mediation can break a deadlock, by consenting to Mediation, and then engaging in the process in good faith, Breach of Duty can be avoided.

The ICOM Code of Ethics strongly encourages Museum Trustees to explore ‘mutually agreeable solutions’.

This can be done by consenting to Ad Hoc Mediation.

I wonder however, what level of knowledge Museum Trustees have about the process of Ad Hoc Mediation?

I suspect that not just in the UK, but globally, more education about the process of ‘Ad Hoc Mediation’ in Cultural Heritage Disputes is required, which is one of the reasons why I am writing a book for practitioners and Trustees about the ‘Mediation of Cultural Heritage Disputes’ – see the page of the same name at www.carlislam.co.uk, and my recent Talk on You Tube: https://lnkd.in/e-9KagXy

I am in the final four weeks of researching the Mediation of International Disputes – which has yielded some original thinking about the Mediation of ‘multi-dimensional’ disputes, after which I will need around eight weeks in which to complete my research of Cultural Heritage Disputes. Then, I can start to put pen to paper. That will be toward the end of August.