A Mediation Advocate (‘MA’) must know where he is going.

In other words, a MA must ‘start’ i.e. prepare – ‘with the end in mind!’

The acme of preparation is the development of a ’settlement range’.

That is the Deal Making Zone [‘DMZ’].

In a trust/estate dispute the DMZ exists in the space between two interacting parallel dynamics which may converge in the consciousness of each participant (‘P’):

– Relative Gains v. Relative Losses [‘P.1 – P.2’].
– Common Ground [‘CG’].

P.1 – P.2 [Relative Gains v. Relative Losses]:

(i)              Declaration & vindication of legal rights.
(ii)             Control.
(iii)            Property & Money.
(iv)            Costs.

CG [Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes]:

(v)             Preserving the capital value of the estate.
(vi)            Engineering a tax-efficient distribution of estate assets.
(vii)          Avoiding litigation risk and thereby saving costs, time, energy.
(viii)         Avoiding publicity.
(ix)            Avoiding further stress and anxiety.
(x)             Preserving a relationship and goodwill if worth saving.

I posit that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2.

That is the DMZ.

Visually this can be represented as follows:

Pre- Convergence

P.1 —————————————————————————P.2

CG?

Convergence

P.1 ————-P.2
CG

In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives.

Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.

But first a Mediation Advocate must ‘start with the end in mind!’

For how this works in commercial mediation Google – ‘Commercial Mediation of Music Disputes — Civil Mediation Council.’

See also: https://lnkd.in/etBXePRP

In trust/probate disputes the participants [P’s] often loathe each other & refuse to meet face to face.

That is Ok because if they did, in all likelihood tempers would be inflamed & the P’s positions would become even more polarised.

That does not mean that the P’s Mediation Advocates [‘MA’s’] should not meet face to face & eventually with the other P.

In a Zoom Mediation, the Mediator [‘M’] may set up a ‘Coffee Room’ [‘CR’] in which the MA’s can meet without their lay clients being in attendance.

The CR is a private room in which the MA’s can meet & speak candidly to each other, thereby establishing a working relationship which eventually engenders respect & trust.

So, toward the end of their 1st/2nd private session with M, i.e. after M has completed the ‘house-keeping’ & initial exploratory ‘getting to know you’ stage of the Mediation process, a MA [‘MA.1’] can be proactive by asking M to speak to the other MA [‘MA.2’], in order to request a CR meeting so that the MA’s can introduce themselves to each other as professional negotiators, i.e. as ‘fellows’.

If MA.2 agrees, then, MA.1 can seize the initiative in the 1st CR meeting to switch the dynamic between them from ‘confrontation’ to ‘collaboration’, by saying something along the following lines to MA.2:

‘Thank you for meeting with us today.
I will be corrected if I am wrong, but what I think you say about the facts and the law is … [i.e. to demonstrate to MA.2 that P.2’s arguments have been heard & understood].
It is not my job to persuade you that your arguments will not succeed at trial.
As you know we say that we will succeed.
I am not interested in having an argument with you about whose view is right.
I suggest that litigation is not going to be a great outcome for either you or for my client. The risks are …
I am here because I believe that we can reach a principled and fair deal that is not only good for my client but also better for your client.
I hope that you will work with me to achieve this today.’

If M facilitates an acknowledgment by both MA’s, that there is always an unquantifiable element of risk in all litigation for both P’s, then he can steer them away from ‘wishful thinking’ & toward ‘constructive problem solving’.

M can thereby bring about a paradigm shift in the P’s/MA’s approach to the resolution of the dispute.

Subsequently each MA, in the presence of M, can take instructions from their lay client about how to switch the focus away from the ‘people’ & toward the ‘commercial problem’ which divides them.

Once the proverbial ‘penny has dropped’, i.e. about ‘litigation risk’, M can then facilitate an exchange of proposals in order to narrow & eventually close the gap between the P’s positions.

This is when M can say privately to each P/MA or to both MA’s in a CR meeting:

‘In practice, there are only 3 types of opening offer a P can make …’

For the full quote see: https://lnkd.in/eF_4KtcJ

Will Starmer restitute the Marbles to Greece? Remember the mess Blair’s government made acting against Foreign Office policy, see ‘How did Labour Opposition support for return become Labour Government Policy against?’, discussed under the para headed ‘The Present Government Position’ on p.50 of ‘The Marbles: Elgin Or Parthenon? IAL Annual Lecture, December 2000’ by William G. Stewart, Vol. 6, Issue 1 Art Antiquity and Law, March 2001, 37 to 56. In Mr Graham’s words (on p.51) – ‘What had happened was an example of the great British cock-up.’ It is a stellar example of breath-taking political incompetence by people who paid no attention to detail! If you read the article you will discover that politicians nearly always make things worse in the world of art restitution. In any event, legally the British Museum Trustees (‘BMT’s’) have their hands tied, see my article ‘Mediating Cultural Property Disputes’ on the page of teh same name at www.carlislam.co.uk. The BMT’s cannot simply hand the marbles back. It is not as simple as that. As I explain in my article, ‘At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law:
(i) Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin

[source – UNESCO Convention 1970, Article 2 & the Preamble]

; & (ii) ‘Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention – ‘the cultural heritage of all mankind.’ [Source: Preamble of the Hague Convention 1954 & UNESCO Convention 1970, Article 4]. If legislation is required it will be preceded by a debate. Notwithstanding a future poll demonstrating that an overwhelming majority of the British public favour return – as does the Foreign Office, the British establishment does not, see Malcolm, Sir Noel The Elgin Marbles – Keep, Lend or Return? An Analysis, Policy Exchange (2023). I expand this point in my comments below.

Malcom based his arguments upon:
 
 – Merryman, John Henry ‘Thinking about the Elgin marbles’, 83 Mich L. Rev.1881(1985). (‘Merryman (1985)’).
 – Merryman, John Henry ‘Two ways of thinking about cultural property’, 80 AM. J. Int’l L. 831 (1986).

– Merryman, John Henry ‘Cultural property internationalism’, 12 Int’l J. Cult Prop. 11, (2005).

‘The Elgin marbles symbolise the entire body of unrepatriated cultural property in the world’s museums and private collections. Accordingly, the preservation and enjoyment of the world’s cultural heritage and the fate of the collections of the world’s great museums are all in some measure at stake in a decision about the Marbles.’ (‘Merryman (1985), p.1895).

So, anybody who thinks/believes that Starmer is simply going to
‘hand the Marbles back to Greece’ is in my opinion not only naive in the extreme, but quite frankly deluded, because there are larger issues at stake & powerful vested interests who can & will act in concert as a lobby to obstruct this – including HNW private owners
of art & cultural property.

Diplomatically, Britain + the US are ‘Cultural internationalists’ (notwithstanding the historical desire of the Foreign office to restitute the Marbles to Greece). So, there is going to be powerful opposition on both sides of the Atlantic. As I have explained, restitution decisions by museum trustees are made in the shadow of larger geopolitical issues & dynamics. If Trump is elected he is likely to be lobbied by powerful vested interests to discourage restitution. Starmer will not dare to defy the US establishment. So politically, will Parliament simply push this further down the line, thereby delaying any decision until after 2029?
 
I also recommend that you read Herman, Alexander (2023) The Parthenon Marbles Dispute, Hart.

 Alexander Herman was my Tutor for the Diploma in Art Law
 course at the Institute of Art & Law.

This struggle between competing ‘global’ interests does not preclude the negotiation of creative restitution deals in Mediation that take place behing closed doors see:

Table – ‘Ethical Principles’;
Table – ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution’;
Table – ‘Tools & Precedents’,

on the ‘Mediating Cultural Property Disputes’ page at www.carlislam.co.uk

As a Cultural Property Dispute Mediator, I am of course ideologically agnostic & politically neutral as I have no skin in the game.

It should be a Chancery Barrister who is also a TEP (‘CBTEP’).

Well you would expect me to say that because this is what I am.

Now unless a Mediator (‘M’) has a solid grasp of estate planning principles & Inheritance Tax Law (& I am the author of 5 bestselling books on these subjects – ‘Tax-Efficient Wills Simplified’ – which is available form Amazon folks as a Kindle book you can read it wherever you are whether on the beach or stuck in an airport etc) then there are 2 problems:

1^st – If during a pre-mediation Zoom call with each participant (‘P’) M ask each P – ‘How would you like to make the best use of the time available on the day/days?’ (NB a Zoom mediation unlike a mediation in person can be paused i.e. you can take breaks & the P’s can dip in & out so it can be spread of time-zones & days) & P.1/P.2/P.1 & P.2  reply ‘I would like to spend part of the time exploring the possibility of creating synergy in order to expand the estate pie through tax-efficient post death re-structuring of legacies & bequests’ – then unless M is a CBTEP he/she will not have a clue what each p is asking him/her to do because he/she does not speak the language of tax & estate planning & has no knowledge of estate planning tools – which may require the evolution of bespoke & sophisticated asset holding structures. That is problem 1 – M is useless because he/she is totally out of their depth.

2^nd problem – Preparation. While M will not be providing any tax advice to either P, in my experience, the mediation of all trust/estate disputes engages both a facilitative & to some extent an evaluative style. While a CBTEP (who is multi-lingual in the law of tax, trusts & estate planning) does not need to prepare i.e. because he/she is not giving any technical advice, each P does. Not least because if they get it wrong & their client later suffers from ’buyer’s remorse’ there is going to be trouble! Now as a mediation advocate I make it clear in my client care letter that I exclude the provision of tax and estate planning advice from my retainer with the solicitor & their lay client. When engaged I also make it clear that where settlement is likely to require the input of a CTA that the solicitor should involve a CTA before the mediation day in order to discuss with us the development of tax-efficient proposals at a meeting to develop a ‘settlement range.’ So, unless M is CBTEP he/she may be completely blind to the opportunity of discussing with each P at that stage not only whether they wish to use part of the day engaging in a conversation in order to expand the estate pie for distribution by creating synergy, but also about  what preparation each p needs to take in order to enter into such a conversation intelligently.

Failure to prepare = a lost opportunity to settle on terms whereby each P can maximise their potential gains & avoid losses by undertaking tax-efficient post death restructuring of estate assets.

Interdependence can result in 2+2 = 6. That is because of ‘synergy’, i.e. the participants can each gain more by working together than by working against each other. In the Mediation of a probate dispute synergy takes many different forms. It of course includes: (i) preserving the capital value of an estate by avoiding the incurrence of costs – which is why Mediation should be entered into before significant costs are incurred; and (ii) creative expansion of the estate pie through a tax-efficient post-death restructuring of estate assets i.e. to maximise any available IHT exemptions & reliefs within the available time window – which is another reason why Mediation should be entered into early, otherwise the opportunity is lost. So, a Mediation Advocate needs to be able to spot an estate planning opportunity when he sees one & then to take expert advice from a CTA. I have dedicated an entire chapter in my new book to this subject. It will not turn you into an estate planning expert overnight, but I hope that it will open your eyes to the creative opportunities that exist, which can be explored in Mediation if the participants each approach & enter into the process with an open and enquiring mind. The ‘interdependence’ dynamic transforms competitors into partners who focus on the problem & not the people & thereby are able to turn a challenge into an opportunity for mutual gain.  This requires the participants & their legal advisors to work with rather than through or against the Mediator & to prepare in advance to explore the existence of common ground which could potentially expand the estate pie.

Many thanks to Dr Hugh Series of the Faculty of Law at Oxford University – https://lnkd.in/eYGXAUNN, for contributing a Practice Note & Chronological Tables about ‘Mental Disorders.’

This will appear as an Appendix to the 2nd Ed of the book.

Both myself & my editor at the Law Society recieved this 22.07.2024 – which was my Birthday! So the timing could not have been better.

In the past, as defence Counsel, I have had the pleasure of working on cases with Dr Series, and rate him as being the foremost practising expert in this field in the UK today.

Although this subject is discussed in paras 4-026 to 4-040 of the 19th ed of Theobald On Wills (2021), Hugh is the first NHS Hospital Consultant & old age psychiatrist that I am aware of, to write about this since the 4th ed of Assessment of Mental Capacity – A Practical Guide for Doctors and Lawyers was jointly published by the BMA & Law Society in 2015.

So, any and every legal practitioner in this field who is worth their salt, should read what he has written.

Ellen Radley is a world class expert on forensic analysis of handwriting & forgery. She has contributed a Practice Note about ‘Forensic examination of handwriting and questioned documents.’

We had a long conversation before she wrote this, about how judges & barristers approach the analysis of expert forensic evidence in fraud cases
& corresponded about this. Her contribution contains fresh & valuable insights for judges & barristers about rigour in the analysis of expert forensic
evidence.

If there is a book launch both Ellen & Hugh will be invited to attend as honoured guests, and if you are on the list of solicitors & judges invited to attend you will be able to meet them in person.

Once again many thanks to both Ellen & Hugh for making these invaluable contributions to knowledge in our highly specialised field.

The ‘Host’ is the negotiator (‘HN’) who asks the questions.
The ‘Guest’ is the negotiator (‘GN’) who answers them.

These roles have nothing to do with the venue.

By asking questions, HN can steer the conversation toward his own interests (i.e. the ‘red-line’ terms of his pre-determined ‘settlement range’ [‘PSR’).
If HN listens to GN & ask questions, then GN will usually take the bait & offer more.

So:

– HN enquires,
– GN offers.

Thereby, HN controls the agenda.

HN is the Cat.
GN is the Mouse.

Paradoxically, GN (the Mouse) thinks that he is leading (i.e. that he is the Cat & HN the mouse). That is because GN is doing all of the talking.

In reality the opposite is true.

That is because the person i.e. HN, who is controlling the conversation & steering it in the direction of his own PSR is the negotiator who is asking the questions & listening.

What is actually happening, is that with each question being asked & answered, GN is being irresistibly drawn into HN’s PSR & further away from his own PSR.

Now, it is not smart for a mouse to sit next to a cat & of course in Mediation the negotiators do not have to meet in person or face to face by Zoom.

As a mediation advocate i.e. negotiator, your natural impulse is to take the lead by assuming the role of ‘Host’.

You are the Cat & your opponent is the Mouse.

In order to do this through a mediator you will prepare to invite the Mediator to ask your opponent questions thereby placing your hands & not those of your opponent on the steering wheel from the outset.

You take control of the mediation car & never allow your opponent to get into the driving seat.

Sorry to mix my metaphors!

So, in the mediation of a probate dispute, the Cat is HN. Not the Mediator.

If you appoint a Mediator who is not an experienced negotiator & does not know about the ‘Host’ & ‘Guest’ dynamic & if the Mediator then does HN’s bidding, he becomes a servant of the Cat.

So, a competent Mediator will always expose the game & thereby neutralise the ‘Cat & Mouse’ i.e. ‘Host’ v. ‘Guest’ manipulation dynamic, by asking the Cat, i.e. HN – ‘how does asking that question progress the resolution of this dispute?’

The answer to this question will reveal whether the Cat is planning to eat the mouse.

The Mediator can then use his skill to facilitate a paradigm shift, whereby the Cat & Mouse are transformed into partners who use their time & energy to focus upon: (i) preservation of the ‘cream & the cheese’ i.e. the estate assets; & (ii) allocation of the ‘cream & the cheese’ between them. This requires parties in dispute to work with the Mediator, by 1st exploring what each party values, needs & prioritises. They may be asymmetrical, because the Cat wants the cream & the mouse wants the cheese. It may also reveal the existence of common ground, i.e. instead of running around they can both enjoy their cream & cheese in peace.

The smallest detail e.g. how your opponent actually speaks & appears in person v. on paper, can reveal more about their needs, priorities, and constraints, than what is in a position statement & bundle. So, in mediation – focus on the person & not the paperwork. Do not let the smallest of details pass you by. This of course is linked to the skill of active listening, emotional intelligence & instinct. It cannot be taught, but it can be practised.

My aim is to write a practical handbook about the law & practice of Art Cultural Heritage & Music business transactions & dispute resolution.

The ‘Art & Cultural Heritage Law Research Bibliography’ appears on the ‘Art & Cultural Heritage Law’ page at www.carlislam.co.uk.

The Music Law ‘Research Bibliography’ appears on the ‘Music Law’ page at www.carlislam.co.uk.

I was planning to get this new writing project underway in March 2025. However, I am currently on schedule to start work on the book in November 2024.

I have started to pull together the threads of my reading about ‘Negotiation’ & to place them in the context of Mediation Advocacy in a trust/estate dispute.

I have also started to draft the Speaking Notes for my online talk to the SCMA worldwide in October about ‘Mediation Advocacy in Trust & Estate Disputes’.

This is an extract from the ‘Introduction’:

Introduction
·       The structure of this talk mirrors the structure of ‘facilitated’ negotiation
during the mediation of a trust/estate dispute – it has:
–     A beginning.
–     A middle.
&
–     An end.
1. Beginning – What is Mediation Advocacy?
2. Middle – Skills?
3. End – Strategies & Traps for the unwary?

The 1st point I will make is that ‘Mediation Advocacy’ = ‘Facilitated Negotiation’. In other words it is not the same as one-dimensional commercial negotiation.

If a negotiator (‘N’), knows how to work ‘with’ instead of ‘against’ the Mediator [‘M’], that opens the door to another dimension – a ‘deal-making’ dimension [‘DMD’].

The DMD is not the same as N’s ‘Deal-Making Zone’ [‘DMZ’].

So, it is a ‘rookie’ mistake to assume that you can somehow get M on your side & then use M to force your opponent into your DMZ by legally ‘bashing them’ on the head’ on your behalf.

M is not a ‘post-box’ & there is always ‘risk’ in any litigation for both parties – not least the Judge you both get.

Effective Mediation is also a more subtle & sophisticated process. That is because your opponent must want to enter into your DMZ – which at some point may overlap with their DMZ.

So, you don’t ‘force’ – instead you ‘attract’, i.e. you ‘draw’ your opponent in.

Thus, to be effective N must be skilled in working ‘with’, rather than ‘through’ or ‘against’ M.

In order to develop this skill in the context of a trust/estate dispute – N
must 1st put himself/herself in the shoes of M. In other words in order to
prepare as a negotiator, a negotiator must 1st prepare as if he/she were the
Mediator.

From October, I should be fully available to act as a Mediator & Negotiator. If you would like to meet me at your offices in London, Leicester, Birmingham, Leeds or Newcastle, or for me to present a short lunchtime talk to your firm in person or by Zoom about ‘Mediation & Negotiation skills’, please email carl@ihtbar.com.