The following is a brief extract from Chapter 5 – ‘Litigation’, of my forthcoming 400 page book – the 2nd Edition of the ‘Contentious Probate Handbook’. I am currently on schedule to complete the drafting of Chapter 5 for submission to my editor in 3 days time. I will then have completed the first draft of around 1/3rd of the book. I am on schedule to complete the book before my Birthday on 22 July:

5.3.5 Evidence

The general rules of evidence apply in probate claims subject to special rules about:
       (a)      admissibility; and
       (b)      the evidence required to prove particular matters, i.e. due execution, revocation, testamentary capacity, knowledge and approval, undue influence and fraud. …

In a contentious probate case, the guiding principle is that a witness should give evidence in his or her own words on issues in the case in relation to which his evidence is likely to assist the court, and nothing else. See also paragrapah 5.8.6 – ‘Reality-Testing’, below. …

‘Recent authorities about how a judge should approach the finding of a fact are: The statement of Legatt J (as he then was) in the commercial case of Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm) … that ‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, the place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’ has attracted criticism: see CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] – [10] approved by the Court of Appeal in Kogan V Martin [2019] EWCA Civ 1645. In the latter case, Floyd LJ stated at [88] that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’ …
(Tristram And Coote’s Propbate Practice. Thirty-Second Edition (2020), by PR D’Costa, P Teverson and T Synak, Lexis Nexis, Paragrpah 39.18, Footnote 3). …

Where, as is often the case, facts relating to the making and execution of a will are solely in the knowledge of one party, e.g. where a testator drafted a home-made will under the terms of which he gifted assets to a person who was living with him, then the making of an application under CPR Part 18 for further information may be necessary. In which case, the author would argue that it is appropriate to make an interim application at an early stage in the proceedings, i.e. at or before the first CMC.

Part 7 probate claims are inherently fact-sensitive, often culminating in a decision being made about which of the parties’ conflicting accounts is more probable than not. … The credibility of the witnesses of fact and consequently the weight attached by the judge to their evidence, will often be a determinative factor in reaching an overall conclusion prior to judgment.

Well at least that is what it says on the sign in my office!

Advocacy is about ‘persuasion’ in the non-Godfather Part 1 sense of the term. That takes patience, preparation and skill. So does ‘persuasion’ in Mediation Advocacy. However, this takes the form of ‘negotiation’ – which involves a completely different approach and skill set – you are not trying to win. You are trying to do a deal. So, I have included the following recommended reading list at the end of the ADR Chapter in the 2nd Edition of the Contentious Probate Handbook, which I am currently writing for the Law Society of England and Wales:

10.5.3       Further reading
In order to develop your mediation advocacy skills, the author recommends the following publications:

‘Thinking in Bets – Making Smarter Decisions When You Don’t Have All The Facts’, by Annie Duke (2018), Portfolio/Penguin.

‘Negotiating the Nonnegotiable – How To Resolve Your Most Emotionally Charged Conflicts’, by Daniel Shapiro (2017) Penguin Books.

‘Negotiating the Impossible – How To Break Deadlocks And Resolve Ugly Conflicts (Without Money or Muscle), by Deepak Malhotra (2016), Berrett-Koehler Publishers, Inc.

‘Never Split The Difference – Negotiating as if your life depended on it,’ by Chris Voss (2016), rh Business Books.

‘Negotiation Genius – How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond’, by Deepak Malhotra and Max H Bazerman of Harvard Business School (2008), Bantam Books.

‘Building Agreement – Using Emotions As You Negotiate’, by Roger Fisher and Daniel Shapiro (2007), rh Business Books.

‘Thinking fast and slow’ by Nobel Laureate in Economics – Daniel Kahneman (2011), Allen Lane.

‘Beyond Machiavelli – Tools For Coping With Conflict’, by Roger Fisher, Elizabeth Kopelman, and Andrea Kupfer Schneider (1996), Penguin books.

I will be discussing ‘negotiation’ mindset and skills in a talk that will be broadcast worldwide at 4pm GMT on Thursday 24 October 2024, in a one hour online seminar for the SCMA.

Prior to entering private practice, I worked in-house for Rolls-Royce and Alstom (in Paris) drafting, and negotiating deals in multiple jurisdictions around the world (principally in the Far East, including China, Japan, South Korea, Malaysia, and India), and resolving international commercial disputes. As a Mediation Advocate, I approach doing a deal in settlement of a commercial dispute with the benefit of that commercial experience and can apply a degree of ‘nous’. As a Mediator, I can also use my ‘commercial’ antennae to help parties re-frame their dispute as an opportunity.

For anybody who is interested in the study, teaching and practice of ‘International Dispute Settlement’, at the foot of the ‘International Dispute Settlement’ page at www.carlislam.co.uk, I have also set out a Research Bibliography for my next book, ‘International Dispute Settlement’ – which I will start to write in 2025.

My copy of ‘Beyond Machiavelli – Tools For Coping With Conflict’ was handed to me and signed by the late Professor Roger Fisher at the end of a two hour one-on-one conversation with him, in his study at Harvard Law School, during a short research visit as a Scholar from King’s College London to Harvard University in April 2002. His parting words to me were:

‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’

As an SCMA Accredited Mediation Advocate and CMC Registered Mediator, I abide by the wisdom of Professor Fisher. This is how you achieve a ‘break-through’ moment in any negotiation/Mediation. I commend his books to all students and practitioners of Mediation and International Dispute Settlement.

For anybody interested in the study, teaching and practice of ‘International Dispute Resolution’, I have set out my current Research Bibliography (which I will periodically update), at the foot of the ‘International Dispute Resolution’ page at www.carlislam.co.uk.

This includes a number of titles about Cultural Property disputes and international dispute settlement, which I read while studying for the Diploma in Art Law course at the Institute of Art & Law between 2020 and 2023.

For my course essay ‘Mediation of Cultural Property Disputes’, and the following supplementary Tables:
– ‘Ethical Principles’;
– ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution’; and
– ‘Tools & Precedents’,
please visit the ‘Cultural Property Claims & Duties of Museum Trustees’ page at www.carlislam.co.uk.

That is the title of my next article, which the editor at the Law Society Gazette informed me today, has been accepted for publication. I will post a link on LinkedIn & on the ‘Publications’ page of my website www.carlislam.co.uk following online publication in the Law Society Gazette. For a global audience, the CMC with the pemission of the Law Society Gazette, are also re-publishing on their website, my article – ‘Commercial Mediation of Music Disputes’, which was first published in the Law Society Gazette 01.12.2023. See also the ‘Mediation of Music Disputes’ page at www.carlislam.co.uk which contains a longer version, with links to source material.

That is the magic of Mediation!

Actually, I think that in some cases it may be more than 7.

When I woke up the song – ‘Guantanamera’ was going around in circles in my mind.

The lyrics in the song – ‘Yo soy un hombre sincero. De donde crece la palma’ mean – ‘I am a truthful man from the land of the palm tree.’ – ‘I am a truthful man from the land of the palm trees.’

Well I have always thought so, however there are no Palm Trees in Leicester & Newcastle!

It didn’t sound like the Gypsy Kings – see: GİPSY KİNGS ♥GUANTANAMERA♥ (youtube.com)

It was a dream.

There were Flamenco dancers and at one point in the dream a small group of Mexican Mariachi musicians appeared playing guitarróns accompanied by trumpeteers who at as the song reached its crescendo swayed in unison to the left.

What I heard in my head though was not ‘Guantanamera.’ It was ‘Quanta Media!’

So, that got me thinking – which is timely, because this morning I am starting the 7 day process of completing the ADR Chapter of my forthcoming book – the 2nd Ed of the ‘Contentious Probate Handbook’ for the Law Society – which for all I know, probably does quite well, way down south, down Mexico way?¡Olé!

Anyway, the writer’s Muse has returned – which is what all authors pray for.

So – how can ‘2+2 = 7’ in the Mediation of an Estate Dispute?

Answer:
1.  It eliminates anxiety by avoiding litigation risk.
2.  It preserves the capital value of the estate by avoiding the unnecessary incurrence of litigation costs.
3.  Participants can negotiate a deal on terms which no court has the power to order.
4.  It expands the size of the Estate through tax-efficient post death re-engineering.
5.  If an estate include qualifying heritage – art is saved for the nation.
6.  Sometimes – not always! – it can preserve family relationships for future generations.
7.  Putting the past behind you & moving-on with your life – i.e. dancing the Rumba instead of fighting – ¡Olé!
Claro!

What other benefits occur to you? – I would be interested in hearing your views.

If my editor is reading this she need not worry, because I am not going to refer to any dreams about mediation in the book. However, I can’t help thinking that ‘Mediation’ is the dream solution to a bitter internercine estate dispute.

Now it’s Saturday – so, back to Rumba & La Duende ! – see: GLOSSARY OF BASIC FLAMENCO TERMS (newcastleflamencodance.com)

To lighten your load this weekend I also recommend that you Google – Gipsy Kings – Bamboléo (Official Video) (youtube.com)

You may also welcome the sheer joy of how they celebrate ‘Guantanamera’ in La Cuba – Guantanamera | Playing For Change | Song Around The World (youtube.com)

So – ‘Volaré, oh, oh

Cantaré, oh, oh, oh, oh

Nel blu dipinto di blu

Felice di stare lassu!’

See: Gipsy Kings – Volare (Official Video) (youtube.com)

& 1 more! – La Bamba | Playing For Change | Song Around The World (youtube.com)

Viva mediation!

And if you are ready for one more – Herb Alpert & The Tijuana Brass “A Taste Of Honey” on The Ed Sullivan Show (youtube.com)

Finally for the authentic Mariachi sound of Mexico – I invite you to listen to ‘Guantanamera by Los Caballeros’ – just Google those words + Youtube. Guantanamera (youtube.com)

·        The sale contract is concluded between the buyer & the seller through the intermediary of the auction house [‘A’].

·        The seller is the auctioneer’s consignor [‘C’].

·        The seller and C are one person, irrespective of who might be the ultimate beneficiary of the transaction.

·        A is the agent of C.

·        Therefore, unlike a sale contract which has two parties, the contractual structure in an auction is tripartite.

·        The appointment by C of A as agent takes the form of contractual agreement known as an ‘agency agreement’, between A & C.

·        This agreement is known variously, as the ‘seller’s agreement’, the ‘consignment agreement’ or the ’agency agreement’.

·        The principal purpose of the agreement is to set out what A is authorised by C to do and what the limits of that authorisation are.

·        Each auctioneer will have a standard agreement which the seller will be asked to sign, appointing the auctioneer at the seller’s agent.

·        So: (i) an artwork is said to be consigned when the seller commits to entrust it to an auction house; (ii) the terms on which he or she agrees to do this are contained in the auction house’s seller’s agreement; and (iii) the ‘seller’s agreement’, is the legal document through which the seller appoints the auction house as his or her agent to market and sell his or her artwork at auction.

·        In addition to the express conditions of the agency agreement, conditions are implied by law and custom.

·        An agent is the fiduciary of the principal.

·        A as bailee, is under a duty to take all reasonable care of goods, and to handle them in accordance with any express instructions given by the bailor.

·        Therefore, subject to the terms of the agency agreement, A will be liable for any damage to or loss of the property caused by a failure to take reasonable care of the property or by handling the property in a way which is not consistent with the instructions given to him or her by the bailor, i.e. C.

·        The agency contract with A is a ‘contract for the supply of a service’ under section 12 of the Supply of Goods and Services Act 1982.

·        It is the duty of A to ensure that a binding contract of sale is created between C and the purchaser.

·        Where A carelessly fails to bring about such a contract he will be liable in negligence, e.g. by failing to notice or take a bid from a willing bidder, or where A conducts an auction in such a way that mistakes are made by the parties involved which allows them to avoid the agreement, Friedrich v A Monnickendam Ltd [1973].

·        If A describes the goods inaccurately then C will be strictly liable under section 13 of the Sale of Goods Act 1979 [‘SGA 1979’], and insofar as the misdescription resulted from A’s negligence, A will be obliged to indemnify C against any loss.

See also:

• Elderly French couple lose rare African mask case worth millions – BBC News
• https://news.artnet.com/art-world/dealer-african-mask-2411422

The majority of commercial mediations are conducted online. 5 points make up the tips of a star, and 5 points make up the vertices of the inner pentagon i.e. of the ‘Hub’ at the centre, which is where the vertices converge. The ‘5 Points’ in online commercial mediation are:
1. ‘Dynamic Commercial Drivers’ – i.e. each participant’s [‘P’s] wants, needs, priorities & reasons.
2. ‘Litigation risk’ – costs incurred/could be incurred in going to trial and adverse publicity.
3. ‘The price of doing a deal that is enough’ i.e. the Mediation maths.
4. ‘Existence of common ground.’
5. ‘Potential existence of hidden commercial value.’
By analogy to the famous voiceover slogan for Carlsberg Lager by Orson Welles broadcast in 1983 – online mediation ‘reaches the parts that’ litigation ‘cannot’, i.e. because the court does not have the power to order what the parties can creatively agree to engineer through collaborative negotiation. That is why online mediation is ‘probably the best’ form of dispute resolution ‘in the world’ where hidden commercial value may exist which can be jointly exploited for the P’s mutual benefit – see ‘Black Swans’ below.
The alchemy in the online mediation of a commercial dispute is to discover what lies at the centre, i.e. in the ‘Hub’, because that is common ground. The Hub is also the zone in which a ‘Black Swan’ may exist. ‘Black Swans are events or pieces of knowledge that sit outside our regular expectations and therefore cannot be predicted.. … There are those things we know … Those are known knowns. There are those things we are certain that exist that we don’t know. … Those are known unknowns and they are like poker wild cards; you know they’re out there but you don’t know who has them. The most important are those things we don’t know that we don’t know, pieces of information we’ve never imagined that would be game changing if uncovered.. … These unknown unknowns are Black Swans. … Finding and acting on Black Swans mandates a shift in your mindset. It takes negotiation from being a one-dimensional move counter move game of checkers to a three-dimensional game that is more emotional, adaptive, intuitive … and truly effective.’ (‘Never Split The Difference – Negotiating as if your life depended on it’, by Chris Voss (2016), rh Business Books, p.216).
An online Mediator needs to be aware of this concept and the importance of looking not only for what the P’s ‘don’t know’, but also for what the P’s ‘don’t know that they don’t know’. This is the USP of online Mediation, because no judge has the power to unlock what a trained mediator can help the P’s discover and agree for themselves. That is because online Mediation is a ‘process’ and not an ‘outcome’ driven method of dispute resolution, which engages and involves imagination of a better future for all.

Over the next two weeks I will be completing the writing of the ADR chapter of the 2nd Edition of the Contentious Probate Handbook, which I am writing for the Law Society. In that chapter, which currently runs to around 85 pages in length, I discuss: JENE; Mediation; Mediation Advocacy; and Mediating, in estate disputes, including Online Mediation using Zoom – which in my opinion has become the industry standard worldwide. The book will incude a Zoom Mediaton Checklist.

The title of my next book, which I have already started to research, and will start to write in 2025 is, ‘Understanding Conflict & Mediating Settlement.’ For further information please visit www.diplomaticlawguide.com. There is a ‘Research Bibliography’ toward the foot of the ‘Understanding Conflict & Mediating Settlement’ page. A point that I will argue in the book, is that ‘Whereas old ideas can result in war, a fresh perspective can bring about peace.’ Ilan Pape’s argument that history teaches us ‘religion’ is not a sustainable basis for ‘nationalism’, and therefore that there can never be peace in MENA until the ‘Zionist’ state of Israel transforms into a normal ‘secular’ state for both Jews & Palestinians, illustrates the point. In understanding conflict a Mediator must understand who is ‘pulling the strings’ and the ‘ideological source of their power’. These need to be brought to the surface because the underlying logic cannot be examined, understood, probed, and rigorously ‘reality-tested’ by an educated Mediator, while they remain submerged or are camouflaged. For an example in relation to Gaza, see pages 132 – 142 of ‘The Israel Lobby And US Foreign Policy’ by John Mearsheimer & Stephen Walt, who discuss ‘the origins of Christian Zionism which lie in the theology of dispensationalism, an approach to biblical interpretation that emerged in nineteenth-century England … and may have made British Foreign Secretary Arthur Balfour more receptive to the idea of creating a Jewish national home in Palestine.’ Note that Jo-Ann Mort of ‘Americans for Peace’ describes the collaboration between American Jews & the Christian Right as an ‘unholy alliance.’ The Israeli moderate Yossie Alpher has warned that Christian support for continued settlement expansion is ‘leading us into a scenario of out-and-out disaster.’ He told CBS News – ‘God save us from these people.’ The Israeli-American scholar Gershom Gorenberg notes that ‘dispensationalist’ theology does not foresee a happy fate for Jews: in the end-times ‘the Jews die or convert. … Christian Zionists don’t love real Jewish people. They love us as characters in their story, in their play … [and] it’s a five act play in which the Jews disappear in the fourth act.’ So, who is manipulating whom? A Mediator may therefore legitemately ask the question – ‘For whom and for what are members of your armed forces dying?’ I also recommend that you read ‘The Ethnic Cleansing of Palestine’ & ‘Ten Myths about Israel’, by the Jewish Professor of History, Ilan Pappe.

From May I am planning to host and run a series of Zoom Mediation Surgeries for one hour at 11am on Friday mornings. Participation is free. If you are a Solicitor, in-house Counsel, Commercial Manager/Director, or business owner and would like to participate, please send an email to carl@ihtbar.com and I will send you an invitation toward the end of April. I hope that you will join me. My website www.carlislam.co.uk also contains guidance about the Commercial Mediation of Music Disputes, Mediation of Trust & Estate Disputes and Mediation of trans-national Cultural Property Disputes.

My Zoom Mediation checklist, for publication in the ADR Chapter of the 2nd edition of the Contentious Probate Handbook states:

1.  Log on 30 minutes early & set-up a back-up device.

2.  Wait for each P to log on.

3.  Admit P’s to Waiting Room [‘WR’] one at a time.

4.  To admit click on ‘Participants’.

5.  Send each P a message – ‘I will be admitting you in a moment, assigning you to your BOR & will visit you after all of the P’s have been admitted, assigned & all BOR’s have been opened up.’

6.  Create Break-Out Rooms [‘BOR’s] i.e. do not pre-create. NB

create extra rooms for yourself as Mediator; a ‘Coffee Room’ e.g. to put

Solicitors/Counsel into; & a ‘Conference Room’ for joint sessions.

·      BOR Icon.

·       Number e.g. 5 BOR’s.

·       Manual. 

·       Create.

·       Rename leaving a gap between each name. 

7.  Assign P’s to their BOR’s one at a time i.e. to keep separate: 

·       Click ‘Move automatically.’

·       Click ‘Create’.

·       When 2nd dropdown menu appears – click ‘Assign.’

·       Click on each P’s name against their assigned BOR.

·       Open all rooms.

·       Each P will receive a message inviting them to join their assigned BOR.

·       Ask each P to click ‘Join’ – Green dot next to name confirms P is in their BOR.

8.       Assign yourself to the Mediator’s BOR.

9.       Go to security icon in tool bar & ‘Lock meeting.’

10.       Meet & greet each P – 1st unmute:

·       Join P.1’s room. 

·       ‘It’s nice to meet you.’

·       ‘I’m Carl Islam your mediator – please call me Carl.’

·       ‘I just want to check you have everything you need (including the signed copy of the Mediation Agreement)’ & check that your messages are getting through.

·       ‘We’re going to get started in a moment.’

·       Check functionality e.g. whiteboard.

·       ‘Do you have any questions.’

·       I will be back in [10] minutes after I have visited P.2 in their BOR to welcome them.

·       Leave room & join P.2’s room.

Stephen’s new book is an indispensible practical guide written by a master of Digital Mediation. I recommend that you purchase a copy. Happy digital mediating and I would welcome any comments about Zoom/TEAMS mediation war stories and tips from digital mediation users around the world. Given the state of our railways and because of transport strikes, the cost of hotel rooms, and the fact that COVID is still out there, I expect that time is fast approaching when Digital Mediation will overtake face-to-face mediation. Of course for cross-border commercial and trust disputes, this saves on the cost of flights and travel time. For participants who are anxious about meeting their opponent(s) face-to face, the P’s are not in the same building.