La règle d’or de toutes les médiations est que la médiation étant essentiellement une forme de négociation facilitée, le succès (quelle que soit la manière dont chaque participante [‘P’] le mesure) dépend du mouvement et de l’élan, ce qui nécessite un compromis de toutes les parties, c’est-à-dire de la flexibilité, sinon si les P restent dans leurs tranchées positionnelles, la médiation échouera. Cela demande du courage, de la confiance et du réalisme. Par conséquent, à un moment donné (et de préférence dans la première heure de la journée de médiation), l’un des P devra démarrer le moteur de médiation en faisant une offre. L’affaire consistant à conclure un accord peut alors commencer : le jeu est en marche !
En pratique, il n’existe que trois types d’offre d’ouverture qu’un P peut faire :

Une offre ‘inacceptable’, c’est-à-dire une offre qui est si déraisonnablement élevée ou si basse qu’elle sera rejetée par l’autre participant et ne l’amène en aucune façon à modifier son approche du règlement. Au pire c’est
peut entraîner le départ de l’autre participant et
mettre fin prématurément au processus.

Une offre ‘acceptable’, c’est-à-dire une offre si élevée ou si basse que l’autre participant vous mordra la main, ce qui signifie qu’une opportunité d’obtenir une meilleure offre a été perdue.

Une offre ‘intéressante’, c’est-à-dire une offre qui fait vraiment réfléchir l’autre participant. Il est peu probable qu’elle soit acceptée, mais l’objectif est d’inciter l’autre partie à s’engager dans la proposition comme point de départ pour ouvrir une discussion qui pourra ensuite être travaillée pour produire une contre-offre intéressante. la médiation peut progresser vers un règlement final.

Avant qu’un participant puisse faire une ‘offre intéressante’, il doit y avoir une clarté réciproque sur les calculs de médiation de base, basés sur ce qui est revendiqué, c’est-à-dire les droits légaux, la propriété et l’argent, et la valeur commerciale correspondante de chaque élément de la réclamation. Si la volonté de conclure un accord est partagée par les P, le médiateur peut les aider à réduire et éventuellement à combler l’écart. La présentation d’une offre est un question de ‘chronométrage’.
[Avant d’entrer en pratique privée, j’ai travaillé en interne pour Rolls-Royce et Alstom (à Paris), où j’ai structuré la fiscalité, rédigé et négocié des accords dans plusieurs juridictions à travers le monde principalement en Extrême-Orient, notamment en Chine, au Japon, en Corée du Sud, en Malaisie et en Inde].

Music disputes are pregnant with litigation risk because they are multifaceted and legally complex. A case theory may hinge upon persuading a judge, on the facts, that an evolving doctrine of law avails the claimant of a remedy. Equitable remedies are discretionary. Consequently, there may be a high degree of uncertainty about legal merits and chances of success. Spiralling costs in litigation also create a power imbalance between an artist and a record company.

The range of claims is illustrated in a Table under the heading – ‘Deal Making Zone’ on the ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk, and include:
·       Band splits/departure of a member.
·       Breach of confidence.
·       Breach of Contract e.g. of a Booking Agency Contract, Management Contract, Music Publishing Contract, or Recording Contract.
·       Breach of fiduciary duty under a Management Contract – which is linked to claims for equitable compensation, rescission, and contract vitiation on the grounds of Undue Influence and the doctrine of Restraint of Trade.
·       Image rights (also known as ‘personality rights’ or ‘publicity rights’) i.e. an artist’s proprietary rights in their personality, which is linked to branding and endorsement. In England and Wales these rights are not codified. Unauthorised use of a person’s name and image is litigated by claiming for breach of contract; infringement of a Trade Mark; passing off; defamation and malicious falsehood; breach of confidence; breach of advertising rules; or breach of privacy.
·       Infringement of copyright, plagiarism and sampling without consent.
·       Violation of Moral Rights.
·       Passing Off.
·       Royalties – Calculation and deductibles.
·       Share of royalties – Claims by session musicians.
·       Songwriter split disputes.
·       Trade Mark infringement – e.g. the Band’s name, which is linked to ownership of ‘goodwill’ in the name.
Unless either the relationship between the Participants in Mediation [‘P’s’] has irretrievably broken down or the will does not exist to collaborate and ‘do a deal’, then as in the words of the late and great George Michael, commercial Mediation can not only – ‘Heal the pain’, it can also liberate the P’s, by enabling them to work out a creative deal to their mutual advantage. This can be achieved by maximising joint-gains in a way that furthers each P’s individual interests. For all P’s this requires a ‘paradigm shift’, whereby they each decide to apply their talents to a creative endeavour, instead of engaging in litigation – thereby avoiding the costs, risks, stress and publicity of going to war. In Mediation the P’s can also agree a commercial framework for settling a dispute on terms that a court has no power to order.
Google – ‘Commercial mediation of music disputes | Law Gazette.’

A Mediator must not pre-label each Participant’s [P’]s values, as that could result in loss of trust from the start.’ –
Respect for diverse religious, spiritual and cultural beliefs, and attitudes to cultural property – i.e. ‘tolerance’ and ‘respect’, demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires participants in Mediation, i.e., the decision-makers, to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. Specifically, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others. This may include an ancient ‘spiritual’/’mystical’ belief that a physical object, e.g., a stone, is imbued with ‘energy’ and some form of ‘power’, for which there is no ‘scientific’ evidence.

While ethical principles may provide a Mediator with tools for steering the P‘s toward recognition of common ground, the Mediator must not pre-label each P’s values, as that could result in loss of trust from the start. What the Mediator needs to do through careful questioning, is to get each P to talk about their values, so that in conversation with each other, they can recognise the existence of an overlapping framework of principles which can be used to develop a creative, practical and lawful solution which essentially satisfies their competing interests, ambitions, imperatives, and priorities.

As I wrote in my article ‘Downton revisited – Mediating estate disputes involving art and heritage property’ [published in Taxation (Tolley) 14.12.2023]:
‘ … “The existence of a dispute over ownership raises a practical problem for anyone seeking to sell the artwork. … Unless the owner is able to successfully challenge the ownership claim, potential buyers … may well be put off
buying the artwork.” (Art Law And The Business Of Art by Martin Wilson (2022), Edward Elgar Publishing, page 361). Where an artwork appears to be an estate asset (A) and there is a dispute about the formal or substantive validity of the deceased testator’s (T’s) will, or a claim is made in equity on the grounds of proprietary estoppel, then until the dispute has been resolved, T’s executors/trustees (E/Ts) will not in practice, be able to:
● appoint A to a beneficiary under the terms of T’s will; or
● sell A to realise liquidity, eg to pay inheritance tax or convert it into cash for distribution to beneficiaries under a will/trust. …
[and a] recipient beneficiary will not be able to sell A.
This is a lose/lose outcome all around.
The financial costs of the impasse to the estate are further compounded by the costs of preservation and insurance of A throughout this time, because E/Ts are fiduciaries. …
[However] the existence of art in an estate is a tool whereby a mediator can steer the participants in dispute toward a mutually satisfactory settlement on terms which enable them to re-structure the testamentary disposition of qualifying estate assets so as to ensure the retention and preservation of A for the benefit of the nation by using a tax-incentive scheme, and thereby to expand the size of the estate pie for distribution, resulting in a win/win outcome all round. Thus, by analogy to the famous voiceover slogan for Carlsberg Lager by Orson Welles broadcast in 1983 – mediation ‘reaches the parts that’ litigation ‘cannot’, ie because the court does not have the power to order what the parties can creatively agree to engineer post T’s death. That is why mediation is ‘probably the best’ form of dispute resolution ‘in the world’ for an estate which includes art.’ The article contains a Table of Mediator Tools, including two novel tax-efficient post-death estate re-structuring ideas which occurred to me as I was researching the article.

If you have been reading my recent posts you will know that I am currently writing a section about ‘Trial’ for inclusion in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society, and every week I am posting a short extract. In that section of the book I set out my ‘Golden Rules of Advocacy.’ My 1st Golden Rule is ‘Concise presentation – Keep it short and Sweet!’ –

‘A concise advocate is a demonstrably prepared, organised, clear, confident, and persuasive advocate. Do not use adverbs. In cross-examination questions should be put in less than seven words. At all times think “precision”, “accuracy”, and “impact”. These are all hallmarks of efficient and effective advocacy. Less is more.’

I am currently writing a section about ‘Trial’ in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society. In that section I recently wrote, 

‘Know the bundles inside out. If you are not on top of the Bundles you are not on top of the case. Make sure that the name of any electronic bundle corresponds with that of a hard copy bundle. Remember that the first few minutes of any hearing are crucial because first impressions count. So if you are wasting valuable daylight labelling a bundle because there is an inconsistency between the electronic and hard copy, you will appear to the judge to be disorganised, in which case you will have planted a seed of doubt in the judge’s mind about the coherence of your client’s case, i.e. its veracity in law on the facts and evidence. In court the Barrister is a General. If a General does not know where his troops are deployed, the conduct of the battle is likely to end in catastrophe because of incompetence. Demonstrating incompetence from the start is not how to make a good first impression. Nor is fumbling around trying to find where a point is dealt with in your papers, or suddenly stopping in mid-sentence, because your papers are out of order. These are hallmarks of lack of preparation. Having to apologise to the court for anything in the first five minutes is not good. Having to do so because you are not on top of your own case is worse.’

The following is an extract form a 15 pages note about ‘Advocacy in Contentious Probate Cases’ that I am currently writing for inclusion in the Litigation chapter of the 2^nd Edition of the Contentious Probate Handbook, which I am writing for publication by the Law Society.

‘A Contentious Probate case will be proved by the documents and witnesses, not by the advocate. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.

‘In Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), later cited in Rainey v Weller & Ors [2021] (a Will forgery claim),Mr Justice Leggatt set out the difficulties of recollection based oral evidence, and the importance of documentary evidence. “An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. … Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

While an advocate cannot win a case using logic alone, assisting the judge to make findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials, and an essential technique in drafting a Skeleton Argument, and delivering a compelling final speech at trial.

I completed the Diploma in Art Law Course at the Institute of Art & Law in London on 13 December (ial.uk.com). This has been a fascinating three years, and I would like to thank my Tutor Alexander Herman, Director of the Institute of Art & Law and author of, ‘Restitution’ and ‘The Parthenon Marbles Dispute’ (Hart)(2023), and all the teaching staff at IAL’s for their excellent teaching an guidance throughout the journey. I have been commissioned by Trusts & Trustees (Oxford University Press), to contribute an in-depth article during the final quarter of 2024 entitled, ‘Deaccessioning & Repatriation – Duties & Powers of Museum Trustees.’  In the article I will discuss section 331A of the Charities Act 2022 – ‘Limited power for charity trustees to make ex-gratia payments. I will also develop the idea of a ‘trust’/’fiduciary’ custodial solution for restitution requiring a collaborative relationship between national museum trustees in the UK, and national museum trustees in the ‘source‘ i.e. claimant’s country. See the ‘Cultural Property Claims, Museum Deaccessioning & Restitution of Art’ page at www.carlislam.co.uk. In January 2025, i.e. after I have completed writing the 2nd edition of the ‘Contentious Probate Handbook’ for the Law Society in 2024, I am planning to research and write a new book entitled, ‘Islamic Art & Cultural Heritage from Andalucia to Afghanistan – A journey into the past about the present.’ One of the themes of the book, is what we can learn from surviving art and cultural heritage about peaceful co-existence and prosperity, through collaborative engagement in international trade and a constructive exchange of ideas. The roadmap for the book is therefore the ancient trade-routes between East and West in the Golden Age of Islam, which stretched from Granada, Cordoba and Seville, all around the Mediterranean, throughout what is now MENA, and along the Silk Road, passing by the Minaret of Djam in Afghanistan, and beyond into India and China. Meanwhile, may I take this opportunity to wish all readers of my posts this year a very Happy and Peaceful 2024. May your wishes all come true!

My article ‘Downton revisited – Mediating estate disputes involving art and heritage assets’ has been published in Taxation (Tolley) online and will be published in print for worldwide distribution tomorrow. I will put up a link on the ‘Publications’ page of my website when I receive this from the editor. See https://lnkd.in/eeP3-vCY.
My article ‘Commercial Mediation of Music Disputes’ was published in the Law Society Gazette – Google ‘Music Dispute Mediator’ to find (NB today the article appears near the top of page 1 worldwide), or here
is a link: https://lnkd.in/e2BDGGfZ
The article will also feature in a forthcoming Newsletter of the Society of Mediators in London (of which I a member), and be distributed to thousands of members worldwide. There is also a link on the ‘Publications’ page and ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk. Both articles, like all of my publications this year (which you will find on the ‘Publications’ page of my website), are written for legal and mediation practitioners. They are not academic. They are practical. ‘Downton revisited’ also includes the outline of two post-death estate re-structuring strategies which I pioneered whilst writing the article. As far as I am aware, these specific tax-efficient strategies, have not been discussed in any previous literature published by Tolley. They appear at the end of the article in a Table headed ‘General questions for mediators’, where these mediator tools are outlined under the sub-headings:
– ‘Private treaty sale’; and
– ‘Engineering restitution.’
To find the article click in the ‘Taxation’ image below, which contains a link to the home page of Taxation, which is the UK’s leading source of information for tax and tax law practitioners in the UK.
In my free time, I am currently researching and writing the 2nd edition of the ‘Contentious Probate Handbook’ for publication by the Law Society in 2024. The draft book is currently on schedule for publication and contains a brand new chapter about Mediation, Mediation Advocacy, and Mediating Estate Disputes, including digital mediation by Zoom/TEAMS. Over the next 6 weeks I am writing up a Practice Note to appear as an Appendix in the Book about ‘Advocacy in Contentious Probate Hearings and Trials’. I have also been commissioned by Trusts & Trustees (Oxford University Press), to contribute an in-depth article after I have completed the book entitled, ‘Deaccessioning & Repatriation – Duties & Powers of Museum Trustees.’ This follows on from the Diploma in Art Law Course that I have been undertaking at the Institute of Art & Law in London since 2021, and am now in the final stage of completing. Meanwhile, let me take this opportunity to wish all readers of my posts a Joyful Christmas and a Happy and Peaceful New Year! As a CMC Registered Mediator I cannot stress the word ‘Peaceful’ enough, so let’s hope that is how it turns out for you and your clients.
Merry Christmas!
Carl

As I write a ‘Case Preparation & Advocacy’ Practice Note for the 2^nd edition of the Contentious Probate Handbook, which I am working on over the next 6 weeks, I will put up a series of short extracts from the Practice Note as posts. Today’s post is about one of the most formidable challenges for any advocate in a Contentious Probate Trial – cross-examination of an eminent experts. Note also that in this context, Dr Hugh Series who is a NHS Consultant in old age psychiatry and a member of the Faculty of Law at the University of Oxford, is contributing a separate standalone Practice Note for inclusion in the book as an Appendix about ‘Mental disorders.’ The extract from the Practice Note I am currently drafting is: –

‘Experts

1. The weight to be attached to expert evidence is entirely a matter for the trial judge.
   1. An advocate who can state the opposing expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions better than the opponent’s expert witness can, is standing on the mountain top and looking down, for the purposes of:

1.2.1 distinguishing his own expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions; and

1. conducting a devastating ‘top down’ forensic critique of the opposing expert’s evidence, in order to: cast doubt; demonstrate falsity; tarnish; ridicule; and comprehensively devalue the weight to be attached to that evidence.

1.3    ‘Research, as much as technique, lies at the heart of expert witness cross-examination. Counsel cannot conduct an adequate cross examination without first thoroughly investigating all of the technical aspects of the expected testimony. It is often said that you cannot cross-examine an expert without first becoming an expert yourself. Moreover, your research should extend beyond the expert’s subject matter area and into the witness’s own professional background … There is nothing so effective as impeaching an expert with his own prior assertions.’ (Lubet).