Litigation v. Artful Resolution: Using ADR Methods to Resolve Art-Related Disputes

By Lauren Gowler

Picture this. You’ve recently purchased a rare Picasso painting from an auction house for millions of dollars. Your new prized possession has come with a “certificate of authenticity,” but soon after the leading expert on Pablo Picasso remarks that the painting may be inauthentic. This expert, who assembles the catalog raisonne, decides to remove the painting from this listing. Scholars, art professionals and the public begin to question the authenticity of your painting, your reputation as a collector, and the auction house who sold it to you. Amidst all of this controversy, the painting’s value has now greatly diminished. With these issues at hand, what do you do?

When conflicts related to ownership or authenticity arise, parties have historically opted to resolve their disputes through litigation. However, there are a number of downsides to litigation that pose real problems for the art world: (1) court proceedings are public forums that offer little confidentiality for litigants seeking to protect their reputation; (2) art-related disputes are often internationalized – requiring parties to bring claims in foreign, unfamiliar jurisdictions; (3) court remedies may fail to satisfy non-conventional stakeholders — such as Indigenous peoples — who may seek the return of religious items or other forms of reconciliation; (4) the courts are not well equipped to adjudicate art specific cases, such as when judges are asked to decide on an artwork’s authenticity.^[1]

Alternative forms of dispute resolution (ADR) – such as mediation, arbitration, and expert determination – have become more relevant and address some of the shortcomings of litigation. ADR processes offer the parties more control over the resolution of their dispute, the opportunity to jointly select an appropriate third party to assist, and the ability to craft creative solutions that respond directly to their interests.