The following is an extract from a revised outline for a book which I have emailed to a publisher, who last week expressed an interest in publishing a book to be written by me over the next 6 months about negotiation and mediation advocacy skills:

Title: ‘How to agree – Creative Dispute Resolution Skills.’

Chapter Structure
·       Introduction.
·       First things first! – Understanding P’s objectives & reasons.
·       Planning.
·       Hidden costs.
·       Hidden value & the Interdependence paradigm.
·       Deal-Making Zone (‘DMZ’).
·       Offers.
·       Negotiation mindset.
·       Negotiation strategy.
·       Negotiation behaviour.
·       Conclusion.
·       Precedents.
·       Table of obstacles & cognitive errors in negotiation.
·       Table of Mediation Advocacy tools & strategies.

About the author
Carl practices as both a Barrister and CMC Registered Mediator, at 1 EC Barristers in London (www.1ec.co.uk). His personal website is www.ihtbar.com.

Introduction

‘You can’t always get what you want
But if you try sometimes, well, you just might find
You get what you need.’

(The Rolling Stones)

Where negotiation is facilitated by an independent third party, this is known as Mediation. This book is written for both: (i) parties in dispute, i.e. those who participate in Mediation; and (ii) where legally represented, for their Mediation Advocates. So, throughout the book I will refer to a party in dispute/participant in Mediation as being ‘P’, to their legal representative as being ‘MA’, and to the Mediator as ‘M’.

In Mediation, the possibilities are only limited by the imagination of the participants [‘P‘s’] and their Mediation Advocates [‘MA‘s’].

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

However for the process to result in settlement of a dispute by agreement each:

1st – participant must decide what ‘enough’ means to them, i.e. what they ‘need’; and

2nd – Mediation Advocate must persuade their opponent [‘MA.2′] and his lay client [‘P.2‘], to agree to what their lay client [‘P.1‘] will settle for, i.e. to give P.1 what he really ‘wants’, and vice-versa.

This requires creative joint-problem solving by all involved in the process.

(For more information about the book & the ‘Research Bibliography’ please visit the ‘Mediation Advocacy’ page at www.carlislam.co.uk).

So, as I approach the end of the journey with my 8th book – the 2nd ed Contentious Probate Handbook, which has in effect been approved for publication by the Law Society, who have sent the completed and peer-reviewed manuscript (which ran to 636 pages of A.4), to a copywriter for laying-out, leaving just proof-reading, I am preparing methaphorically to ‘put to sea’ again in my solo yacht – but this time for a journey around the world lasting only around 6 months!

‘There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities. … By Article 2 [of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970], the parties recognise that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin, and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property, and the parties undertake to oppose such practices with the means at their disposal.’ (Iran v. Barakat [2007], per Lord Phillips CJ at: 155, 157).

Subject to five exceptions, the issue of whether a museum in the UK acquired good title to an ancient artefact [‘A’] before it arrived in the UK and was sold or gifted to a museum, will be decided by applying the lex situs, Winkworth v. Christies Ltd [1980]. This is a matter of expert evidence.

One of the five exceptions to the Lex Situs rule is where the foreign law is considered by the English court to be contrary to English public policy, e.g. because it favours a thief, which was posited in the City of Gotha case.

The reasoning of the Judge in The Islamic Republic of Iran v. Denye Berend [2007] demonstrates the application of the relevant principles.

So, the circumstances in which A was removed, appropriated and acquired, are relevant to a claim for an equitable remedy brought in the High Court in London.

If an expert persuades the judge that removal and appropriation was not authorised, and if it had been, that it would have amounted to a violation of international law at the time, then I would submit that the judge may infer that the removal and appropriation of A was unlawful at the time, and therefore that the museum could not have acquired a beneficial proprietary interest in A. That is because the transferor was incapable of passing title in A to the museum under English law. Therefore, the museum holds A in its collections subject to a constructive trust.

This reasoning is also pertinent to the mediation of cultural property disputes. Becuase ‘using interests rather than rights or power to frame cultural property disputes would avoid these problems and would be a more productive way to resolve such disputes. This is the case because, … creativity can create value that meets both parties’ interests.’ (Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335S at pp. 367 – 369)’.

‘There is no such thing as a single, uniform process or set of procedures which constitute a “restitution blueprint”. Nor is there a single, defined goal or endpoint. Rather, responding to a restitution case requires you, the museum, to (re)consider your relationship with objects in your collection, their history, origins and acquisition – and most importantly, the people for whom they may have a special meaning today. Receiving a claim for restitution or repatriation can therefore be seen as an opportunity to learn and reflect, and to connect with people and the collection in new ways. Generally, the experience need not be defensive and adversarial, but can be collaborative and enriching. Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel.’ (Art Council England – ‘Restitution and Repatriation: A Practical Guide for Museums in England’). 

This is why mediation is approipriate in a cultural property dispute.

·       This is a waste of time, because you cannot win an argument in Mediation as the process is not a trial.
·       Arguments lead to further entrenchment of positions.
·       Mediation advocacy requires the establishment of personal rapport with people you disagree with and reasoning with them to persuade them that they should see what is in dispute as your lay client does, and that their interests coincide with those of your lay client.
·       Therefore, the outcome of the process depends to an extent upon whether your mediation advocate [‘MA.1’] is possessed of the inter-personal skills to initiate/develop a rapport with the other mediation advocate [‘MA.2] and their lay client [‘P.2].
·       Respect engenders trust.
·       So, avoid the acute angle.
·       Never tell MA.2/P.2 that they are wrong.
·       A misunderstanding is never ended by an argument, but by tact, diplomacy, conciliation, and a sympathetic desire to see the other person’s point of view. In other words, MA./P.1 cannot get MA.2/P.2 to agree by telling them that they are wrong.
·       This will have the opposite effect, because MA.1/P.1 will thereby have insulted the intelligence, pride, ego and self-esteem of MA.2/P.2.
·       That, it is counterproductive.
·       Always allow your opponent to save face!
·       Never place your opponent in the wrong.
·       If you give someone a fine reputation to live up to, it is possible that they may try not to disappoint you.
·       So treat people gently, with honesty, respect and sincerity, as they may reciprocate.
·       Always make MA.2/P.2 feel happy about doing what you suggest.
·       Do not back them into a corner.
·       Instead, try to win them over gently and tactfully to your way of thinking.
·       If you are going to prove anything, do not let them know it.
·       Be subtle and adroit, so that nobody feels that they have been manipulated.
·       Instead of trying to prove, try to find the facts, i.e. be forensic.
·       Be aware that:
(a)   People continue to believe what they have become accustomed to accepting as true.
(b)    The resentment aroused when doubt is cast on their assumptions leads them to seek a justification for carrying on with those beliefs.
(c)    Their reasoning becomes finding arguments for adhering to their beliefs. So, refrain from direct contradiction of the sentiments of others and from positive assertion of your own.
(d)    Instead of contradicting MA.2/P.2, show some absurdity in a proposition, i.e. distinguish it in the present situation from the situation in which it would logically be correct.
(e)    Propose your opinions in a modest way.
(f)     This leads to increased receptivity and decreased contradiction.

• A cognitive error is a failure to think clearly i.e. a routine barrier to logic.
• Rolf Dobelli describes 99 forms in his book, ‘The Art of Thinking Clearly’ (2014).
• Let’s examine two forms: (i) ‘Unconscious bias’; and (ii) ‘Loss aversion.’
• ‘Unconscious bias’ refers to a set of attitudes & beliefs that the P’s, M & MA’s may be unaware of.
• It has two components:

(i)      ‘attitudes’; &

(ii)     ‘stereotypes’.

• Attitudes can be positive, negative, or neutral, whereas a stereotype is a specific trait that is probabilistically associated with a category.
• As applied to people, stereotypes are usually unwelcome, even if they are positive, because they implicitly deny the individuality of the person being stereotyped.
• Negative stereotypes are even more unwelcome because they are commonly used to marginalise or oppress people stereotypically associated with a trait.
• Stereotypes are categories that constrain and shape what a person believes about, and expects from, other people.
• One of the challenges in managing stereotypes is that they are a form of automatic thinking, i.e. they spring to mind even if they represent a view that our conscious minds find abhorrent.
• Overcoming unconscious bias is the key to clear & rational thinking.
• The techniques for reducing bias are psychological strategies, i.e. they try to change, albeit indirectly, how our minds process difference.
• We can also examine our bigoted thoughts & feelings through introspection..
• The cognitive bias of ‘Loss aversion’, is that the fear of losing something, motivates people more than the prospect of  gaining something of equal value.

‘When making decisions, most people, most of the time, give more weight to the risk of suffering a loss of a given magnitude than to the chance of gaining a benefit of the same magnitude. This preference seems irrational, and it is considered a cognitive bias [known as ‘Loss Aversion’]. Loss aversion refers to the symmetry in the evaluation of positive and negative outcomes, in which losses loom larger than the corresponding gains. In other words, a person is more deterred by the idea of losing a particular sum of money than excited by the idea of gaining the same sum: for most people the fear of losing [£100] is more intense than the hope of gaining [£150]. … [Raising] awareness of bias requires sensitivity to cognitive distortions, including being aware of one’s resistance to seeing bias.’ (Linveh, Yair Overcoming the Loss Aversion Obstacle in Negotiation, Harvard Negotiation Law Review, Vol. 25:187, Spring 2020, 187-212, pp.1-2 & 15).

• If M and the MA’s understand the principle of ‘Cognitive error’, then they can save the P’s from themselves, thereby avoiding destructive behaviour which does not help the P’s get what they each ‘need’ through facilitated negotiation and agreement.

A trust fund/estate is a finite resource. If prudently managed it can grow. If legal costs are incurred which are indemnifiable out of the trust fund/estate, it will diminish. Preserving the capital value of the trust fund/estate by doing a deal in Mediation and thereby avoiding the incurrence of unnecessary costs = common ground. ‘Expanding the pie’ by releasing and sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground.

In preparing his lay client [‘P’] for participation in the Mediaiton Day, a Mediation Advocate [‘MA’] needs to explain to P:

(a)    That there is always an unquantifiable element of risk in any  trust/estate litigation for all parties involved.
(b)    That ‘realism’ i.e. the acknowledgment by each side in a dispute, of the existence of litigation risk for both sides, is what eventually opens the door to settlement in Mediation, i.e. by bringing about a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration.’
(c)    That in order for P to make a commercial decision about whether ‘the candle is worth the flame?’, P needs to think about the dispute resolution process as being a ‘commercial proposition’/ ‘transaction.’
(d)    Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’  which becomes the foundation of his opening and closing offers.
(e)    P’s calculation should factor in both ‘hidden costs’ and potential ‘hidden value’.

The foundational principle upon which the entire law of occupation is based is the principle of ‘inalienability of sovereignty’ through unilateral action of a foreign power.

Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a ‘trustee’ who exercises only ‘temporary managerial’ powers until the occupation ends.

The occupant serves only as ‘administrator’ and ‘usufructuary’ of public monuments belonging to the people of the occupied state/polity.

It must safeguard these public monuments, and administer them in accordance with the rules of ‘usufruct’, avoiding wasteful or negligent destruction of their capital value.

So, an occupying colonial power may not permit a person to lawfully detach/remove any part of the whole, and thereby appropriate the fragment.

Thus, removal of any part of a public monument, i.e. by hacking off a fragment, e.g. part of a ‘frieze’ adorning the monument, is ipso facto unlawful under international law. It must therefore be returned for re-unification with the monument. QED.

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

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

Negotiation skills are rarely/if at all, taught on undergraduate law courses in UK universities, or on vocational courses for solicitors and barristers. Those lawyers who did not study law at university may not even have studied negotiation skills at all, before entering into private practice at the coal-face, i.e. the ‘real world’.

I cut my baby teeth negotiating contracts around the world and settling disputes for Rolls-Royce and Alstom.

As I mentioned to the late Professor Roger Fisher, co-author of ‘Getting to Yes’, during a short visit to Harvard Law School as a visiting scholar from King’s College London 23 years ago, I educated myself about commercial negotiation skills in my early-twenties by reading his books, and then by applying the principles he wrote about in real life negotiations with a high degree of success around the world.

At the time as far as I can recall, none of my counter-parts in what are now BRICS countries e.g. India and China, had read any of his books. That I think has now changed, and many lawyers in these countries have received a more thorough grounding in negotiation techniques than most lawyers in the UK have.

That is in large measure attributable to the work of the Standing Conference of Mediation Advocates (the ‘SCMA’) and my colleague and fellow author Andrew Goodman.

So, as a result in international commercial negotiation/Mediation Advocacy in a cross-border dispute, these lawyers have acquired a competitive edge over solicitors and barristers in the UK.

Critically, and this is the difference, they have probably become more adept than lawyers in the UK at thinking outside of the box, i.e. at imaginative/creative problem solving.

Lawyers in the UK need to catch up, otherwise in international negotiations/cross-border mediations, these BRICS lawyers are going to eat the City lawyers’ lunch! If as an international law firm you want to survive, this is no time to be arrogant and complacent.

Negotiation is a skill you develop and perfect by doing.

It requires experimentation and life-long learning.

Mediation Advocacy is a specialised form of negotiation, because it is facilitated. So, even if you have studied negotiation, then you may still not know anything at all about Mediation Advocacy. Nor may the partners in your firm, and your lecturers/tutors at University/on vocational training courses.

This is a massive gap in academic/professional training, i.e. a ‘blind-spot’/potentially existential ‘Achilles heel’ for lawyers in the UK.

To learn more about Mediation Advocacy in estate disputes, see the Slides and Speaking Notes on the ‘Mediation Advocacy’ page at www.carlislam.co.uk.

Note the ‘Research Bibliography’ on the ‘Mediation Advocacy’ page at www.carlislam.co.uk & Leathes, Michael (2017) Negotiation – Things Corporate Counsel Need to Know but Were Not Taught, Wolters Kluwer.

What I have am still trying to understand is whether this massive oversight by those who teach law at university in the UK, and on vocational training courses which are supposed to prepare green initiates for the real world of private practice, is the result of ‘academic snobbery’ or ignorance. Perhaps it is a combination of the two?

The ethical principle of ‘beneficence’ is based in part upon the Aristotelian concept that ‘the whole is greater than the sum of its parts.’ So, museum trustees are under an ethical duty, subject to countervailing factors, to collaborate in re-uniting all parts of the cultural artefacts that were affixed to the Parthenon with the monument.

The British Museum (‘BM’) has various tools available for accomplishing this which are discussed on the ‘Mediation of Cultural Property Disputes’ page at www.carlislam.co.uk.

Whatever creative solution is agreed must be approved by Parliament. The Government will need to propose a bill so that the artefacts held by the BM can be de-accessioned.

The ‘National importance’ test may provide a precedent, e.g. the Derynaflan Treasures, see (Webb v. Ireland [1988] Irish Reports 353 (High Court), 373 (Supreme Court), per the Chief Justice at [383]).

Another solution, which I innovated is split legal and beneficial ownership using a trust, whereby (i) Legal title to the Parthenon Marbles (‘PM’) is vested in both BM and Greek National Trustees; and (ii) The PM is beneficially owned by (a) Greece; and (b) Mankind.

A ‘trust’/’fiduciary’ custodial solution might for example involve the transfer of the PM to a bespoke trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T‘s, and the conferring of a power on the T‘s to deliver the PM to Greece for permanent display.

Outcome – Indivisible legal title to the PM is jointly held by: (i) the BM T‘s; and (ii) the Greek T‘s.

The PM is beneficially (i.e. actually owned) by: (i) the people of Greece; and (ii) Mankind (including the people of Great Britain).

The PM are delivered to Athens for permanent display.

There is no loan.

So, to an extent, this is a practical win/win solution for both the BM T‘s and Greece.

As the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’.

In particular, ancient ship-wrecks are a record of human evolution.

Therefore, I would argue that they are part of the consciousness and collective memory of mankind, e.g. because ancient shipwrecks and the ‘stuff’ found inside them on the seabed in the Mediterranean, provide evidence of when the Roman Empire reached its peak in terms of size and geographical extent, i.e. in the mid-2nd century.

So, these ship-wrecks tell us when the Roman empire began to decline. This knowledge is of value and benfit to all humanity, i.e. because of the lessons that history can teach us today.

Since what marine archaeologists and historians can learn from ancient ship-wrecks is of value to humanity, do ‘fiduciary duties’ attach to these underwater sites and ship-wrecks under international law?

For centuries, international lawyers and statesmen have endorsed the principle that a state’s sovereign authority is held in trust for the benefit of its people.’ So, by extrapolation, what duties are or should states be under to preserve and protect underwater archaeological sites around the world for the benefit of mankind?

My Question for Dr Taco Terpstra who is giving an online webinar tomorrow at the Cambridge Centre for Geopolitics about ‘Trade and Economic Growth in the Ancient World Economics, Trade’, is:

‘You are the author of “Trade in the Ancient Mediterranean: Private Order and Public Institutions” and “Trading Communities in the Roman World.”
The subject of your books reveals that people from different religions and cultures can co-exist in peace through international trade, provided there is a sophisticated and stable underlying political infrastructure/world order/network. Today international law and institutions are in tatters. The liberal world order is nearing collapse. However, a new “multi-polar” world order is emerging amongst members of the Global South – BRICS. So, what can history teach us about “Geopolitical convergence through international trade” and what lessons can the architects of BRICS derive from the ancient world about geopolitical convergence?’

Preface to my question:

International trade and finance engenders trust and co-operation between trading partners in different states. That is because interests converge through participation in a common commercial venture which has risks that must be shared and allocated between those who can benefit. This requires the creation of a financial infrastructure. For example, later in history, in medieval long-distance trade – whether it traversed international boundaries or whether it moved within the vast expanse of the medieval Islamic domain, required substantial investments of capital to cover the cost of acquiring goods at distant points, and of transporting them and caring for them until they were disposed of. The perilous conditions of both sea and land travel, the arbitrariness of political and military authorities and the unpredictable market conditions exposed such investments to grave risks. In Islam, it was the partnership and commenda contracts which were the two basic legal instruments through which the economic functions of the provision of capital resources for the formation of commercial investments, and the sharing of the risks of commercial ventures could be accomplished. However, we possess no documents or actual contracts of commenda and partnership arrangements for the first three Islamic centuries.

For information about the webinar see:

https://lnkd.in/eUJxrYhv

‘In this webinar, Taco Terpstra will speak on trade in the ancient world. He will further discuss premodern economic growth, and how to measure and achieve it, distinguishing between Smithian and Schumpeterian theories. His talk will address Roman innovation in the production process, including the role that slavery might have played. Taco will be joined by the Centre’s deputy Director, Professor Bill Hurst, who is convener of the Ancient Geopolitics series.’