The following is an extract from my forthcoming article – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation’, (which I will complete and offer for publication in March 2025):

‘By entering into negotiation, parties in dispute may be able to capitalise on their different needs and priorities in order to discover agreements which expand the estate pie, i.e. by uncovering value-creating trades. Therefore, on one level, resolving an estate dispute through the process of facilitated negotiation/mediated dialogue, involves a ‘distributive’ negotiation about a finite resource, i.e. division of the estate assets, and focuses on each party’s individual interests and needs. On another level, it involves an ‘integrative’ negotiation which aims to create mutual gains and find solutions that meet the needs of each party in dispute [‘P’], by considering their common interests. However, there is a tension between ‘distributive’ and ‘integrative’ negotiation, because how can e.g. P.1 seek to create value without exposing himself to the risk of exploitation by P.2 in the distributive aspects of the negotiation? Resolving the dilemma requires creative joint-problem solving by all involved in the process.

In Mediation, the possibilities are only limited by the imagination of the participants and their Mediation Advocates. Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible.

In the words of the Rolling Stones,
“You can’t always get what you want
 But if you try sometimes, well, you just might find
 You get what you need.”

In the first part of this article, the author provides a set of ideas about how best to prepare as a negotiator, for the settlement of a trust/estate dispute in mediation.’

At 4pm GMT on Thursday 24 October 2024, I presented an online talk to members of the SCMA worldwide, about ‘Mediation Advocacy in Trust & Estate Disputes.’ Click on this link and ‘de-mute’ to watch and listen to the video of my talk on YouTube: https://lnkd.in/ea6D6XnC

YouTube: 

The following is a paragraph I wrote this morning for my next article – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation.’ I am planning to complete the article and submit it to Trusts & Trustees (Oxford University Press) in March 2025. I will then write Part 2 – ‘Negotiation’, later in 2025. The extract from Part 1 is as follows:

‘In a trust/estate dispute value can be squandered because it is never identified. The opportunity for a mutually satisfactory trade exists in what the author calls the ‘Deal-Making Matrix’ (‘DMM’). The DMM is a mind-map (that can be sketched on a whiteboard), which graphically illustrates the dynamic interrelationship between what is of vital commercial interest to each P.

Thereby, what is of lesser strategic importance to each becomes apparent. Where e.g. each P attaches asymmetrical values to the same trust/estate assets, therein lies a potential trade. However, a potential trade cannot be forensically analysed and plotted with any accuracy before a mediated dialogue has commenced. That is because P.1’s pre-mediation analysis of the price he is willing to pay to do a deal can only be based upon untested assumptions about what P.2 is willing to accept.

So, during that early ‘preparation’ stage of the process, P’s calculation of the ‘price’ can only be provisional (i.e. a starting-point), as adjustments will need to be made during the mediated dialogue if it becomes apparent that P.1’s assumptions are erroneous. Thus, P.1 will need to re-calculate the price of doing a deal throughout the process as new information and insights emerge, and likewise, so will P.2.’

See also the Video on YouTube of my online talk to members of the Standing Conference of Mediation Advocates worldwide – ‘Mediation Advocacy in Trust and Estate Disputes’ (24.11.2024): https://lnkd.in/e787e7uF

The recording is now available to view on the ‘My YouTube Channel’ page at www.carlislam.co.uk. Please scroll back to the beginning to see it from the start. The talk is introduced by Andrew Goodman, who is a globally recognised guru and legend in the Mediation Advocacy community.

In 2025, I am planning to launch a new YouTube Channel – ‘Art of Agreement – How to deal with our differences constructively.’

The niche is how to negotiate conflict/dispute settlement.

The target audience is students, academics, and practitioners of negotiation and mediation advocacy (many of whom also practice as mediators) – globally.

Before the launch I will upload this recording as the first hour of content along with new video content that is planned but has not yet been recorded.

Direct link – https://youtu.be/W6_PnTH98b4

The Abstract to my forthcoming article (based upon my recent online talk to members of the SCMA worldwide) – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation’, currently reads:

‘The twin pillars of Mediation Advocacy are:
(i)         ‘effective preparation’; and
(ii)        ‘skilful negotiation’.
In Part 1 of this article I will discuss preparation and in Part 2 – negotiation.
It is a cognitive error to assume that because a legal practitioner is a competent trial advocate, that they must also be a competent mediation advocate, i.e. dispute resolution negotiator. While to an extent advocacy skills transfer to negotiation, the two skill sets are not the same. So, a practitioner may be a brilliant trial advocate but ineffectual as a dispute resolution negotiator.

In the UK, ‘negotiation’ is generally not taught to law undergraduates, nor is it taught to student solicitors and barristers on their vocational courses. As a result of changes made to the Civil Procedure Rules on 1 October 2024, there is likely to be an increase in mediations, whether parties consent or not, and consequently an increased demand for practitioners who are skilled mediation advocates, i.e. negotiators. So, in the opinion of the author, this gap in the education and professional training of lawyers in the UK is likely to change, otherwise market demand for proficient negotiators will exceed supply.’

In Part 2 of the article, I will also discuss ‘Ethics in negotiation’. I have just ordered a copy of ‘What’s Fair: Ethics for Negotiators’ by Carrie Menkel-Meadow, which I will read cover-to-cover in December.

It has just occurred to me that since ‘negotiation’ is generally not taught to law undergraduates, nor to student solicitors and barristers on their vocational courses, that nor is ‘Practical Ethics in negotiation, i.e. doing the right thing.’

So, in developing a future ‘Negotiation’ course for law students at all levels, ‘Ethics in negotiation’ is a key component.

A deep understanding of ethics is vital not only to mediation advocates (whatever the nature of the dispute) but also to mediators.

As I said, I will discuss this in Part 2 of my article which I will write during the first quarter of 2025. I am on schedule to submit a complete draft of Part of the article to the editor of Trusts & Trustees in 21 days time. I have already written 25 pages of manuscript in one week.

2nd ed Contentious Probate Handbook – I am awaiting return of the manuscript from the type-setter for proof-reading. That is the final step prior to publication.

To read the Mediator’s ‘Camel Parable’, Google ‘The Eighteenth Camel.’

By acknowledging the ‘interdependence dynamic’, i.e. that siblings in dispute actually need each other in order to maximise gains by avoiding/minimising losses (Pareto Principle or 80/20 Rule), i.e. because collaboration v. competition can result in the creation of synergy e.g. 2+2 = 6, then what parties in dispute and their mediation advocates need to do in preparing for mediation, is to search for the 18th camel. The same principle applies to the mediation of commercial disputes.

The 18th Camel is a win/win/win outcome, i.e something that is bigger than money.

In a trust/estate dispute there is always an 18th camel, as I discuss in Part 1 of an article I am currently writing and will offer to Trusts & Trustees (Oxford University Press) for publication about ‘Mediation Advocacy in Trust and Estate Disputes.’

All you have to do to find the 18th camel is adopt a constructive mind-set i.e. approach to the settlement of an estate dispute in mediation. That is because searching for the 18th camel can transform competitors into problem-solving partners.

In particular, to find the 18th camel where an estate includes both qualifying agricultural property and heritage assets, see my article published in Taxation in 2023, ‘Downton revisited – Mediating estate disputes involving art and heritage property.’ There is a link on the Publications page at www.carlislam.co.uk.

Today Trump is ahead in Arizona by +1.80, i.e. he is forecast to win 48.7% of the vote v. Harris on 46.9. So, if he wins that state on Tuesday, then on the election math, Harris must win Michigan.

No Democrat has ever won the Presidency without winning this state.

Today she is forecast to win 47.8% (i.e. she is ahead of Trump by 0.80.

However, 5.4% are undecided + there is a margin of error.

Some voter are undecided.

Some may not have openly come out if favour of Trump in Michigan but will in fact end up voting for him.

In March I wrote a blog on the ‘Conflict & Dynamics’ page at
www.diplomaticlawguide.com – ‘Has Trump already won the Presidential election?’

I argued that on the election maths, Biden (i.e. now Harris) can only win if he [i.e. she] takes Michigan.

I added a note at 12.21, 01.03.2024:

‘Biden has picked his side – ‘The US, on 29 February, vetoed a UN Security Council (UNSC) statement that would have condemned Israel for the mass murder of over 100 Palestinian civilians who were awaiting the delivery of humanitarian aid in Gaza City. … Thursday’s veto is the fifth time Washington has blocked a UNSC statement or ceasefire resolution that would hold Israel accountable for the atrocities it has committed in Gaza. According to Riyad Mansour, the Palestinian UN ambassador, 14 of the 15 council members supported the statement advanced by Algeria. At least 112 Palestinians were killed and more than 750 wounded after Israeli troops opened heavy machine gun and artillery fire on thousands waiting for food … in what marked the first delivery of food to northern Gaza in several weeks. “After opening fire, Israeli tanks advanced and ran over many of the dead and injured bodies,” Al Jazeera’s Ismail al-Ghoul reported from the scene. “At about 4:30 in the early morning, trucks started to trickle in. The Israelis just opened random fire on us as if it was a trap. Once we approached the aid trucks, the Israeli tanks and warplanes started firing on us,” a witness at the scene told Al Jazeera.” (thecradle.co).’

If elected Trump has pledged to end the war in Ukraine. Geo-politically, his focus will be on containing China, and not on MENA. He may even: normalise US foreign relations with Russia; close US bases in MENA; and open-up a dialogue with BRICS (including Iran) about economic relations and trade. To his credit, unlike Biden/Harris, he is not a warmonger.

So undecided voters in Michigan, many of whom emigrated to the US from MENA, provided they do not abstain, may vote for Trump.

This is even more likely, if as reported, Trump has clearly stated that he does not want a war with Iran no matter what Netanyahu wants.

For those of you who have forgotten, Netanyahu betrayed Trump in the immediate aftermath of the previous election. Trump has a long memory. I wonder if he has forgiven Netanyahu?

So, keep a close eye on Michigan!

One of the speakers at the online Institution of Art & Law Training day on 16 November, which I am attending, is New York attorney Leila Amineddoleh, who is the founder of Amineddoleh & Associates in New York, and one the world’s leading art restitution lawyers.

If you Google – ‘Foundation’s arguments thwarted in New York case of Nazi-looted Schiele + Institute of Art and Law’, you will see that the author, Stephanie Drawdy who is an American artist and attorney wrote:

‘For the part of its decision holding that laches would not bar the heirs’ assertions of title, the Court was first required to address the question of which law would be applied to the dispute. … The Court … chose to apply New York law, citing the state’s “overwhelming interest in preserving the integrity of its market” (Decision at 16, quoting Reif v. Nagy).

The door was then open to an application of the U.S.’s Holocaust Expropriated Art Recovery (“HEAR”) Act of 2016, which the Court noted “promotes restitution to Holocaust victims” (at 16). A key provision of the HEAR Act sets forth that “defense[s] at law relating to the passage of time” should not be allowed to defeat heirs’ claims (at § 5(a)). …

In finding Zuckerman “most closely aligns” with the foundation’s preferred resolution in Lehman, Justice Odorisi noted the Zuckerman Court’s admonition that each case is dependent on its own facts and in other cases laches might “not impede recovery for claims brought pursuant to the HEAR Act” (at 22, 17). The Lehman Court found the facts before it constituted just such a case. Despite “some similarities” with Zuckerman, the Court found “a notable and significant difference”: the pre-war owners of The Actor (the Leffmans) survived the war while Mayländer and Rieger both perished, leaving their heirs with the almost impossible task of locating and reconstituting their collections (at 22). “As the Court observed in Reif, it would be ‘absurd’ to allow the laches defense to defeat the claims of the Mayländer Heirs and Rieger Heirs” (at 25).’

My Q.’s for Leila are:

(i) What is the juridical/policy/moral rationale underlying the impermissibility of laches operating as a bar to restitution under the HEAR Act?
(ii) Since laches is an equitable principle and not an absolute statutory time bar, are there any circumstances in which she can forsee ‘laches’ (i.e. in a claim based upon the existence of a constructive trust), not being permitted by an English court, to bar a claim for restitution of ancient art, i.e. by acknowledging that the juridical/policy/moral rationale underlying HEAR is a generic principle of art restitution that is of wider application, since it is grounded in universal ethics and morality?

In my online talk last week to members of the SCMA worldwide, one of the principles that I spoke about was, ‘Empathetic communication’ i.e. listening to understand in order to be understood.

I argued that, ‘The only way to get someone to do something is to make the other person want to do it.’

When dealing with people as opposed to machines, you are not dealing with creatures of logic, but with creatures of emotion, bristling with prejudices and motivated by pride and vanity.

Instead of condemning them you need to understand why they have behaved as they have.

So, you must put yourself in their shoes in order to see things as they do, i.e. you need to listen to them with empathy.

When you listen to a person with empathy, you give them ‘psychological oxygen’.

By affirming their vital psychological need for understanding and acknowledgment, you can then move forward, by becoming partners in jointly solving a shared problem. This I believe is true whatever the cultural differences are between those involved, i.e. having your voice heard, and being treated with respect, are universal negotiation ‘deal-openers’ that transcend any culture.

When you listen with empathy you also open yourself up to being influenced.

‘Being open to influence is the key to influencing others.’

Now as Michael Caine might say – ‘Not many people know that!’

The 60 minute  talk was recorded on Zoom and I have received permission to post it on my forthcoming YouTube Channel – ‘Conflict Negotiation & Mediation’, once I have received the link.

I am aiming to launch the Channel on or before 20 November.

As far as I am aware it will be the first YouTube Channel of its type, exclusively in the genre of teaching conflict resolution, negotiation (i.e. Mediation Advocacy) & Mediation skills to students, academics, and practitioners worldwide. So, watch this space!

In the 1990’s I worked in-house for 2 multi-national engineering giants who were leaders in the field of power-projects. In those days the idea of privately-financed projects worth millions (the last one I was involved in was over £800 million) was emerging. Today these projects involve many multiples of that. One of the key risks analysed by merchant banks and other investors was/is ‘political risk.’

Hold that thought for a moment!

Google – ‘Judge Napolitano + Larry Johnson : Israel and Ukraine Covering Up Failures.’ In this programme it was reported that:

(i) Israel’s attack on Friday was planned to consist of 3 waves. The 1st was to suppress Iranian air defences so that bombers could then enter Iranian airspace to fire precision guided missiles at their targets within range.

(ii) Israel was unable to suppress Iran’s air defence systems (‘ADS’) & no aircraft entered Iranian airspace.

(iiI) The 2nd & 3rd waves were called-off.

If correct, then what happened, i.e. why did Israel call off the 2nd & 3rd waves?

Google – ‘Judge Napolitano + Alastair Crooke : Israel’s Preference For Self-Destruction.’

According to Alastair Crooke’s sources during the 1st wave Israel encountered an unknown ADS which was capable of shooting down stealth aircraft.

If correct, then apparently this will have been the first time that such a system has been tested in combat as hitherto, it was not known to exist.

If Iran has demonstrated that its has an ADS which can lock on to and destroy approaching stealth aircraft, then Israel:

(i) cannot intercept incoming hypersonic missiles; &

(ii) cannot launch an attack on Iran using stealth aircraft without risking their aircraft from being shot down,

i.e. Israel cannot deter a future attack by threatening an effective counter-strike.

Therefore, by attacking Iran, it appears that Netanyahu has demonstrated that Israel has lost escalatory dominance to Iran.

So, placing myself in the shoes of an investor, what I am wondering in the context of evaluating ‘political risk’, is how any consortium of construction & infrastructure companies can manage the political risk of what they are building being destroyed before they have completed the project & been paid in full?

If they cannot manage that risk, then how can western construction & infrastructure companies undertake projects inside Israel?

Therefore, if e.g. the Houthis/Hezbollah attack Israeli infrastructure, then who is going to rebuild it?

Netanyahu and his government appear to have caused more self-inflicted harm to the economic security and viability of Israel as a functioning state than they foresaw & realised when they attacked Iran.

That is because they appear to have revealed to the world that the ‘Emperor has no clothes!’

According to the report in the link below, the Israel lobby in the UK has funded half of Keir Starmer’s cabinet, and Labour’s top team have accepted hundreds of thousands of pounds from pro-Israel funders –

https://lnkd.in/esX2Rk56

If this report is factually correct, then I am left wondering:

(i) How many serving Government Ministers and Labour MP’s in Parliament are in favour of the creation of a Zionist ‘Greater Israel’? – See my previous post – ‘What political mandate do Keir Starmer & David Lammy have to support Israel in bringing about a Zionist Greater Israel?’

(ii) How many serving Government Ministers and Labour MP’s in Parliament support what Israel is doing in: Gaza (i.e. ethnic cleansing and genocide); Lebanon (i.e. invasion, assassination, bombing & ethnic cleansing); Syria (bombing & destruction of an embassy); and Iran (assassination, bombing and possibly all out war in MENA – which could result in the crashing of the world economy as we know it)?

Can you name a single recent Neocon/Zionist planned war in which the US/UK has been involved, that resulted in a successful outcome for the US/UK – i.e. Afghanistan; Iraq; Libya; and Ukraine?

So, what makes Government Ministers and MP’s in Parliament today, believe (if they do), that it is in the paramount British national interest to help Israel to establish a Zionist (i.e. mainly white-settlor colonial ‘ethno’-supremacist/ apartheid) hegemony in MENA, i.e. by establishing a ‘Zionist Greater Israel’?

What is the geopolitical rationale & benefit to the UK?

What if Israel fails?

Since Israel is now at war with nearly all of its neighbours except Egypt and Jordan, and appears to be planning to engage in a long war with Iran which could trigger a regional war in MENA, how can Israel possibly succeed?

Do the military maths!

So, have Starmer and his Ministers calculated the price to the UK of engaging in a long regional conflict in MENA?

If they have, then:

(i) What is the price in UK lives & treasure?

(ii) What provision/contingency has been included in the budget?

Starmer has committed the UK to provide £3 billion a year of military support for Ukraine until 2030/31, and for as long as needed.

What is the amount that in addition, he is willing to commit the UK to provide to the Zionist regime in Israel?

Where in Labour’s election manifesto did it say that the they would scrap the winter heating allowance and increase taxes with one hand, and with the other give billions to Israel so that the Zionist regime could further its ambition of clearing all Arabs off the land of ‘Zionist Greater Israel’ by: (i) committing ethnic cleansing and genocide; (ii) bombing Lebanon ‘back to the stone age’ (in the words of Israel’s Defence Minister), and now going to war with Iran?