Monday, April 20, 2015


 

 

 

 

 

 

 

 

Conflict Mediation Report: The Bacon-Marlborough Dispute

Zen M. S. Dean

Grand Canyon University: Psy 575

April 15, 2015



Conflict Mediation Report: The Bacon-Marlborough Dispute

(Mediation Form is on the last page of this report.)

There may have been times in our history as a species when the only survival tactic was force. As we have evolved from lower species our culture and customs have evolved as well. We look back, no doubt, at the practice of clubbing our neighbor over the head over a prized catch and shake our heads in dismay. It was barbaric. Now in modern times, society has seemed to become more and more complex compared to the stereotypical cave man. Who can trace the line from those beginnings to the time where laws and culture has become intangible, a matter of deep scholarship and study? Today, we don’t just have large fish to fight over; there is a concept of intellectual property to contend with. Scientific research, writings, inventions and even art can be owned in the theoretical realm, not just physically. Cave drawings and petroglyphs made tens of thousands of years ago may not be contested for ownership, but their evolved descendant, fine modern art, most certainly is. Fortunately for us and our heads, our methods of conflict resolution have evolved as well. Nowadays there is mediation instead of clubs, and scientists research how best to mediate by examining real life cases (case studies) rather than violent strategy. This is a report on a case study that illustrates how vital and important mediation can be to dysfunctional conflicts.

One of the most famous and expensive conflicts involving art and grossly under-used, or perhaps completely unused mediation, occurred when famed surrealist painter and multi-medium artist, Francis Bacon, died in 1992 (Falconer, 2015, Francis Bacon). As described by case study authors Camp and Zimmerman (2003) the conflict under consideration is a:

Dispute between the Estate of Francis Bacon, one of England's most important 20th-century painters, and the prestigious London gallery Marlborough Fine Art--described in the British press as "one of the most bitter art wrangles in decades" and "the most sensational legal spat the British art world has seen"--illustrates the limitations of traditional dispute resolution through litigation. Marlborough represented Bacon from 1954 until his death in 1992, and possessed exclusive rights to sell and reproduce Bacon's work. The Estate of Francis Bacon brought suit against Marlborough alleging breach of fiduciary duty, failure to account, and even blackmail. Significant discovery and motion practice ensued. Counsel for the parties anticipated a 12-week trial. Litigation cost estimates were in the millions of pounds. Success would have meant as much as £100 million for Bacon's estate. In addition, English law generally requires the loser to pay the victor's legal expenses. The case abruptly settled days before the trial was to begin (p. 62).

Thus we come upon a scene where hundreds of millions of dollars are at stake, not to mention the beloved art of an English national treasure. Since the legal fees are noted to also be in the millions of dollars, which is not to mention what a 12-week trial would cost, any way to reduce those costs would be a welcomed alternative. And then at the end of the trial, there would be one victor, and one very sore loser. Both sides had legal counsel that seemed willing to take the matter to court at some point.

How to Proceed in a Mediation

            To help demonstrate the recommended steps for conflict management, a conflict mediation form is provided on the last page of this report. The details of the form guide one through the process of mediation starting from before a conflict arises, by having interested parties agree to mediation attempts when a relationship is forged. The theory and method the form follows is derived from three main sources: Organizational Behavior by Stephen Robbins (2015), The Bacon-Marlborough Dispute: A Case Study in Mediation by Alida Camp (2003) and Emotional Conflict and Well-being: Relation to Perceived Availability, Daily Utilization, and Observer Reports of Social Support by Emmons and Colby (1995).

The first step in mediation is to identify the conflict [the mediation recommended in this report applies only to dysfunctional conflict and not to functional conflict as defined by Robbins (2015, p. 402)]. To accomplish this Robbins (2015) describes three main conflict types:  task, relationship and process (p. 402). But if one were to imagine being executor of Francis Bacon’s estate, or perhaps Bacon’s best friend and sole heir, John Edwards (Riding, 2003, New York Times) and all of his life’s work, amounting to over 100 million dollars, one can imagine that intense emotion would be involved. That is why from the beginning of the mediation process, a person’s emotions are indicated and validated. Also, Emmons and Colby (1995) report the results of their research to be supportive of including parties’ emotions in the mediation process:

The results of the mediation analyses support the notion that perceived support is an important contributor to the link between emotional conflict and well-being. An individual's negative perceptions and attitudes toward social support play an important role in reporting lower well-being (pp. 955-956).

Therefore, emotional conflicts and evaluation of social supports (whether they are sufficient or not) are included in a thorough mediation process, and they appear in the mediation form. Even more intangible conflicts like the parties’ response to cognitive dissonance (repressive defensiveness) are included, and this methodology is supported by Emmons and Colby (1995, p. 948).

The next step in mediation is to identify the locus of the conflict. Robbins (2015) supplies us with the definition of the three loci of conflict:

            Another way to understand conflict is to consider its locus, or where the conflict

occurs. Here, too, there are three basic types. Dyadic conflict is conflict between

two people. Intragroup conflict occurs within a group or team. Intergroup conflict

is conflict between groups or teams (p. 403).

Judging from the above definitions, the Bacon-Marlborough case was primarily an intergroup conflict. But there was more to it than just that, as the next comment from the Camp (2003) article indicates, “By not using mediation, the result was that "relations between the Bacon's Estate and his life-long dealer are now strained and it may be some time before they can work constructively together" (Art Newspaper, issue 123)” (p. 62). So in a way, a perhaps intimate, 40-year relationship that existed between Bacon himself, and his personal art dealer was shattered, trust was breached and feelings hurt. The real world cost of hurt feelings may include the fact that cooperative artistic endeavors between Bacon’s estate and his art dealer were stunted and almost terminated permanently. This would have been a catastrophe, and Bacon’s beloved public would have felt the brunt of the injury. Access to Bacon’s art would have been attenuated.

The final steps in mediation follow from the principles already discussed, with a notable inclusion of “checking in” with both parties, asking how things are going in the mediation process so far. This is an expression of Emmons and Colby’s (1995) attention to emotion in the process, but is also a nod to Robbins’ (2015) conditions of conflict. Robbins (2015) lists three conditions of conflict that are salient in the first stage of conflict: “communication, structure and personal variables” (p.404). Checking in is not just a kind act placed in the middle of the mediation, but also handles two of the conditions of conflict rather well, communication and personal variables. It shows a willingness to be agreeable, likable, which according to Robbins (2015) simply works. Robbins (2015) states regarding personalities in conflict resolution scenarios, “A recent study demonstrated that teams made up of individuals who are, on average, high in openness and emotional stability are better able to turn task conflict into increased group performance” (p. 403). Emmons and Colby (1995) also address personal behavior style and recommend agreeable behaviors (“helpful functions”) such as showing sympathy, and being supportive (p. 948). There seems to be quite a consensus that exhibiting socially agreeable behaviors rounds out the mediation process to a positive finish.

Mediation - the Missing Component in the Bacon-Marlborough

            It is does not seem to be publicly known what caused both sides in the Bacon-Marlborough case to settle just before the trial. Perhaps one of the parties came to their senses and decided that some of the mediation principles and steps that happen to be listed in the mediation form here, would avert disaster. The certain resolution of the Bacon-Marlborough case would have been to follow Dean’s Conflict Mediation Form which is based on research performed by leading organizational psychologists, just a few of which are cited in this report. Of course, it is speculation to postulate on how things would have turned out if mediation had been used properly in the Bacon-Marlborough case, but the facts bear out that in the very least a few million dollars in attorney fees would have been saved if the less combative and more friendly methods of mediation had been used.

 

   




   




 

References

Camp, A., & Zimmerman, P. (2003). The Bacon-Marlborough dispute: A case study in

            mediation. CPA Journal, 73(9), 62-63. New York: NYSSCPA

Emmons, R. A., & Colby, P. M. (1995). Emotional conflict and well-being: Relation to

perceived availability, daily utilization, and observer reports of social support. Journal Of Personality And Social Psychology, 68(5), 947-959. doi:10.1037/0022-3514.68.5.947

Falconer, M. (Ed.). (2015). Francis Bacon. The Art Story Foundation. Retrieved from:


Riding, A. (2003, March 7). John Edwards, 53, Francis Bacon confidant. The New York Times.

            Retrieved from: http://www.nytimes.com/2003/03/07/arts/


Robbins, S.; Judge, T. (2015). Organizational behavior, Sixteenth Edition, Upper Saddle River,

            NJ: Prentice Hall.

 

 

 

 

 

 

 

 

 

 

 

Dean’s Conflict Mediation Form

 

Before Conflict Agreement:

Signing the following form constitutes an agreement by both parties that upon the identification or realization of a conflict, both or all parties to use the following form to, in good faith, attempt to solve the conflict or come to a settlement in regards to the conflict. The following questions and procedures will be used to attempt an amicable resolution of the conflict. This does not constitute an agreement to settle, but merely an agreement to use this form and its processes to attempt a settlement. None of the parties should feel pressured to settle or compromise based on its use. The purpose of this form is to look out for the interests of all parties and arrive at a fair and acceptable solution to the conflict as defined in this form. Know that the privacy of all parties will be respected and the information collected as a result of this process is to be kept confidential and cannot be used outside of this proprietary institution unless agreed upon by all affected parties. Use of this form and its processes does not constitute a legally binding contract. Its aim is to possibly avoid unnecessary litigation or legal processes for the peace of mind and well-being of all parties. Signature_____________

 

What kind of conflict is this? A task conflict? A relationship conflict? A process conflict? Emotional expression conflict (Ambivalence towards)? Social support (lack of), socio-emotional support or interpersonal support conflict? Breach of trust? Legal conflict? Property conflict? Other? More than one or all of the above? ________________________________________________________

   

What is the locus of the conflict, Dyadic, Intergroup or Intragroup? ___________________

 

Please describe the nature of this conflict using as much or as little detail as you wish. (Feel free to use the back of this form or additional pieces of paper to make your description. ______________________________________________________________

 

What is your primary goal in this matter? _____________________________

 

If you like, please name all persons or entities that you feel may be involved in this conflict

_____________________________________________________________

 

What do you feel is the cause of this conflict?_______________________________

 

If you like, please propose one or more solutions to this problem __________________

 

Do you feel that a settlement or compromise might be possible in this case? If so please describe the nature of what a settlement or compromise would look like in your opinion.

________________________________________________________

 

Have any laws been broken to your knowledge? _____________________________

 

Do you feel you have been treated fairly so far during this mediation? ____________

 

Have the terms of a contract been violated to your knowledge on the part of any persons or entities? _________________________________________________

 

Is there any cognitive dissonance that may be resulting in repressive defensiveness on the part of yourself or another party that you can point to? ________________________________









 

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