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.
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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