The audience at ArtSummit Ireland, at Dublin’s Merrion Hotel on 3 November, heard that litigation can have a devastating effect on the value of a work of art.

London-based barrister and mediator at Art ADR Global Nicola Wallace warned that litigation is costly not only in terms of legal fees, but in time spent and risks to business and professional relationships.

She said that the term ‘art law’ covers a wide range of matters that might fall into dispute such as 

• breaches of contract,
• intellectual property issues,
• insurance claims,
• authenticity, 
• misrepresentation. 

What distinguishes these wrangles from other commercial disputes are the emotional elements which come into play when a work of art is at stake, she said.Wallace pointed out that emotions drive disputes and quoted Law Society of Ireland director general Ken Murphy: “Mediation is easily the preferred first step in commercial dispute resolution – and can offer numerous benefits to companies that actually save time, money and can even save a business reputation from potential harm”.

“Litigation is risky,” said Wallace. “No lawyer will guarantee your outcome. A judge can go either way. Live witness evidence at trial can often fail to deliver the strength and force of argument that looked so promising on paper. “

Emotions drive disputes

Litigation is quick to escalate. Parties taking strong defensive positions often trigger reactive responses. This can quickly lead to entrenchment,” Wallace said. 

Wallace said that legal advisors must be prepared to “sell’ a proposal in terms of mutual benefit and that each party to a mediation should have a ‘back table’ to which progress reports are made.