Volume 5, Number 2, June 1983, pp.3-5
The speaker for the Bay Area Art Conservation Guild meeting of March 1, 1983, was attorney Teresa V. Carey from Bay Area Lawyers for the Arts. The main topic of the evening's discussion was Arbitration and Mediation Clauses for the Conservation Work Contract.
Arbitration and Mediation are two alternatives to court settlements of claims. Either alternative is faster and less expensive than going through the regular court system. In San Francisco and other Bay Area cities it can take two years for a claims case to come to court, and in Los Angeles as much as five years. Arbitration or Mediation can come to a hearing in less than a month and emergency sessions can be called within 24 hours.
Arbitration: Both parties must agree in advance to accept the decision of the arbitrator (a neutral third party who must be acceptable to both sides or is often a panel of three persons). A hearing is arranged and the arbitrator listens to both sides and reviews the evidence. A written decision is then rendered and sent to both parties. When parties agree to binding arbitration, they essentially are substituting the decision of an arbitrator for a court decision.
Mediation: A neutral third party does not make a decision for the two sides but acts as a facilitator to arrive at a workable solution. The mediator presents the rights and duties of each party and gets both sides to contribute to the decision. In order to maximize open exchange at the hearing, parties agree that any statements cannot be used in later proceedings. Once an agreement is reached, it is written and signed by both parties; this agreement is persuasive if the case eventually does go to court.
A clause to provide for arbitration or mediation can be included in your conservation contract. It provides a way to prevent litigation by setting up a forum to resolve disputes in advance. Here are some samples that appear in the brochure put out by Arts Arbitration and Mediation Services, Building B, Room 300, Fort Mason Center, San Francisco.
All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of Bay Area Lawyers for the Arts.
All disputes arising out of this agreement shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of Bay Area Lawyers for the Arts. If such service is not available, the dispute shall be submitted to arbitration in accordance with the laws of California. The arbitrator's award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.
Should you decide to take advantage of their services, the initial fee for Arts Arbitration and Mediation Services is generally $20.00 to $40.00, or 3% of the amount in controversy, whichever is greater, from each participant. The fee may be waived for those meeting their low-income standards. Additional costs are approximately $50.00 per hour to be divided by the two parties. You may call them for a free consultation at (415) 775- 7715.
The American Arbitration Association also provides these services, but is more expensive.
The arbitrator selected for a hearing usually is someone who has some background relating to the nature of the dispute, but may be "educated" by the supporting witnesses and evidence you bring to the hearing. You may also have your attorney come with you.
You can initiate the arbitration process yourself or through an attorney. If after signing a contract agreeing to arbitration, the other party goes to court instead, you may present your agreement and the court will order the arbitration to proceed.
Having a mediation or arbitration clause in your contract can provide a way to settle unpaid accounts. Addition of a clause to the effect "that successors and assigns be bound" will cover yourself for liability in case of death or other unforeseen circumstances on behalf of the other party.
Art arbitration can also be used for unsettled insurance cases. Ms. Carey did not go into this aspect in depth, but discussion among conservators present concurred that a contract should state in advance what type of coverage an object has while in your care. Those present had many ways of dealing with the issue of insurance. The conservator's policy might cover certain types of liability (fire, theft, etc.), or you may decide to state that "it is the owner's responsibility to obtain the necessary coverage for the work of art in treatment at the conservator's location." In some cases the conservator can become the "coinsured" on the clients policy. The discussion could not cover all aspects of insurance clauses as it becomes a specialized topic.
Ms. Carey also talked briefly about the California Arts Preservation Act. This was enacted to prevent occurrences such as the case where a Calder mobile was repainted in colors far different from those chosen by Calder, and was further altered to the extent that it was no longer mobile. In such cases, the court may choose to assess punitive damages that would be awarded to an appropriate arts institution. The statute of limitation for this is three years from the actual injury or one year from the date of its discovery. Murals and frescoes present an interesting problem in this vein. Whoever pays for the removal of a mural or fresco owns it, but the artist must be given notice of this intention before it is undertaken. The law is not designed to restrict conservation treatments undertaken in the interest of preserving the work of art, but might apply only to an act constituting "gross negligence."
In closing, Ms. Carey informed us that the law library on the fourth floor of San Francisco City Hall is open to the public, so anyone with specific questions on such things as art contracts and insurance claims will find plenty of readable information. Bay Ares Lawyers for the Arts is also a very good source of information referral.
Bay Area Lawyers for the Arts (BALA) is a non-profit organization conceived in 1974 by artists and lawyers providing legal referrals, publications, educational events and Arts Arbitration and Mediation Services to artists and arts organizations throughout California. Arts Arbitration and Mediation Services received initial funds from the National Endowment for the Arts as a national model project. The address of Bay Area Lawyers for the Arts is: Fort Mason Center, Building 310, San Francisco, CA 94123.
The theme of the IIC-CG conference, held in Banff, Alberta, was professionalism in conservation. Contrary to the American trend toward establishing centralized, large conservation laboratories and institutions, Canada is now in the process or decentralizing its primarily Ottawa-based conservators to smaller city or provincial-based museums and/or laboratories. Consequently, the conference dealt with a self-critical evaluation of the conservator's role within a museum environment.
A major concern among the delegates was the possibility of the profession being inbred. Few attempts have been made to educate and integrate conservation with all other museum functions, from museum janitors through curators and directors. One specific problem (common to many professions) is the use of conservation lingo. Terminology which is clearly comprehensible to conservators often falls on deaf ears with other museum staff. Communication and collaboration is the key to higher conservation standards within the museum environment. Policies must be established within each museum department to define the parameters of their functions.
One session dealt with discussing a Canadian Code of Ethics for the Conservation of Historic and Artistic Works, Monuments and Sites. Many codes of ethics (including the AIC Code of Ethics and Standards of Practice, 1979) were examined. It was felt that the majority of these codes placed an emphasis on the practitioners or practice rather than the cultural resource. It is hoped that the Canadian Code of Ethics will place emphasis first on the cultural resource and second on the responsibilities of the practitioner and others who take a role in its conservation. In addition, a federal bill is being drafted to make mandatory the presence of a conservator on all archaeological excavations within Canada.
An entire afternoon session was devoted to the planning of conservation laboratories. Papers ranged from high budget, spacious laboratories such as the Humanities Research Center, University of Texas, to low-cost, small conservation laboratories in northern Canada. A highly informative presentation, "Functional Laboratory Planning," was presented by Neil S. Sutherland, a Fisher Scientific Co. representative from Edmonton.
Other papers were more specific in nature. These included:
"The Stability and Preservation of Colour Photographic Materials" by Klaus Hendriks, Public Archives of Canada.
"Conservation of Waterlogged Organic Materials: A Review" by Victoria Jenssen, Parks Canada.
"Notes on the Manufacture of Goldbeater's Skin" by Jack Thompson, Thompson Conservation Laboratory, Portland, Oregon.
"The Conservation of Gilding and Other Metal Leaf" by Andrew Todd, Private Conservator, Calgary.
"Rust Removal Methods for Mineral Specimens" by Robert Waller, National Museum or Natural Sciences.
"The Accessible Storage Prototype or Glenbow: the Mechanics of Conservation" by Ann Howatt Krahn, Glenbow Museum.
"Creative Traditions: A Humidity-buffering Mounting and Crating System" by Arlene Oak, University of Alberta; Lisa Mibach, Provincial Museum of Alberta.
"Recent Developments in the Conservation or Paintings at CCI" by Leslie Carlyle, Canadian Conservation Institute.
"The Final Report on a Stabilizing Treatment for a Contemporary, Two-hundred-pound Oil Painting on Canvas" by Marion Barclay, National Gallery.
For further information concerning this conference, contact:Benita Johnson
Pieter Meyers, Senior Research Chemist at LACMA's Conservation Center, attended two international meetings: "The Symposium on Archaeometry and Archaeological Prospection," April 18-23 in Naples, Italy, and the Symposium "Historical Technology of Noble Metals," April 25-29 in Meersberg, Italy.
The Archaeometry Symposium is an annual meeting on recent developments in the applications of physical sciences to archaeological materials. Session subjects included: ancient technology: nonmetals, prospection (use of physics techniques to search for archaeological remains), ancient metals and metallurgy, provenance studies, dating of organic materials, and mathematical methods.
The Symposium on "Historical Technology of Noble Metals," held only for the second time, dealt with the following subjects: early metallurgy and mining of precious metals, metal trade, techniques of gold and silver smithing, technical examinations of gold and silver objects, analysis of gold and silver alloys, archaeological and art historical aspects of precious metals technology, and problems of fakes and forgeries.
Pieter Meyers presented a paper entitled "Production, Distribution, and Characterization of Silver in the Ancient Near East."