ABSTRACT
Alternative dispute resolution, also known as ADR, is a concept that includes arbitration, conciliation, mediation, and negotiation. These alternatives to litigation are often critically important in resolving disputes over the ownership and management of heritage. They are noteworthy for the following reasons. First, in ADR, the parties involved retain greater control over the resolution process. Unlike in litigation, where they cannot choose the judges they will face or decide which law will be applied, the parties in ADR are free to appoint any arbitrators or other dispute resolvers of their choice and also to designate the applicable norms as they wish, whether they are statutes, customary law, or some non-legal norms such as customs and standards in the industry or general principles of fairness and justice. Second, these informal means of resolving disputes are more flexible and easier to use, allowing dispute resolvers to be innovative in crafting solutions that best match the needs of the parties. For example, when the original owner of a stolen cultural object brings a lawsuit against its current possessor, he or she may face a number of obstacles that prevent restitution, depending on which jurisdiction he or she is in: the court may decide that the owner’s title has been extinguished by the operation of the doctrine of prescription, or it may decide that the present possessor is protected as a good faith purchaser for value. Typically, the court is reluctant to modify legal rules to achieve a just and equitable resolution in one particular case. By contrast, arbitrators may decide that the original owner has a legitimate interest in the repatriation of the object on the condition that he or she should offer partial compensation. Likewise, conciliators or mediators may suggest that the original owner and the current possessor should sign a long-term lease, under which the property stays where it is and the latter pays the rent to the former, while the title itself should be reverted to the former. Comparing various dispute resolution methods, this chapter examines the advantages and the potential disadvantages of ADR, particularly in contrast with more formal judicial means of handling disputes, whether national or international. It concludes with a focus on cases involving plundered, looted, or stolen cultural objects, including monuments and archaeological artifacts from prehistoric or historic sites, such as the return of the Obelisk of Axum from Italy to Ethiopia in 2005.
