I recently wrote & added a comprehensive section about ‘Mediation Advocacy’ principles for practitioners, to the draft of my forthcoming book, 2nd ed Contentious Probate Handbook book for publication later this year by the Law Society.

During the writing of this original 40 page section, it occurred to me that whilst many courses are taught at British Universities & by professional training providers about ‘Mediation’, with the exception of the education & training courses provided by the Bar Council & Standing Conference of Mediation Advocates (www.scmastandards.com), almost no academic teaching & professional training is currently being provided in the UK to students & practitioners, about ‘Mediation Advocacy: theory; practice; and skills’.

So, there is a huge gap in the market for Mediation Advocacy education & professional training services.

Is this the same in your jurisdiction?

Following the enactment by The Civil Procedure (Amendment No. 3) Rules 2024’ – Statutory Instrument 2024 No. 839 (L. 11), of changes to the CPR about mandatory mediation, which come into force on 1st October 2024, there is likely to be an increase in demand for Mediation Advocacy education and professional training, driven by an increase in the volume of Mediations which take place accross the board from 1st October.

As far as I am aware, my book will become 1 of only 4, which discuss Mediation Advocacy principles for practitioners in detail. It will also be the most current literature written on this subject, possibly anywhere in the world, apart from Andrew Goodman’s recent book – ‘Advanced Mediation Advocacy’ (2024).

I am also providing an online talk worldwide to members of the SCMA (scmastandards.com) at 4pm GMT on Thursday 24 October 2024, about ‘Mediation Advocacy in Trust & Estate Disputes.’ A link to the talk will be posted on the SCMA website next week.

Between October & April 2025, I am planning to write an in-depth article for academic publication about ‘Mediation Advocacy in Art Restitution Claims’. This is linked to an idea I originated two years ago about the use of ‘Practical Ethics’ as both a Mediator and Mediation Advocacy tool, in an art restitution/cultural property repatriation claim, see my essay on the ‘Mediating Cultural Property Disputes’ page at www.carlislam.co.uk, in which I wrote:

‘In my opinion, the tipping point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute, is at the intersection of: Practical Ethics, i.e. ‘doing the right thing’; with the exercise by museum trustees of their legal powers in accordance with their legal duties. At which point, conscience, morality, and ethics, collide with law, and can become fused in equity.’

If in 2025, you would like me to present a half day course about ‘Mediation Advocacy’ either in person or by Zoom, i.e. anywhere in the world, please email carl@ihtbar.com.

Whereas litigation is a ‘destructive’ process, which may consume each of the parties involved, i.e. resulting in the end in only the lawyers walking away as ‘financial’ winners, value can be added in Mediation for the benefit of the participants, where synergy is created through constructive problem-solving. This requires commercial awareness. So, when preparing their lay client for Mediation, a Mediation Advocate and their lay client, each need to think about the dispute resolution process as being a ‘commercial proposition’ or ‘commercial transaction’. Whilst many courses are taught at British Universities and by professional training providers about ‘Mediation’, with the exception of the education and training courses provided by the Bar Council and Standing Conference of Mediation Advocates (www.scmastandards.com), almost no academic teaching and professional training is currently being provided in the UK to students and practitioners, about Mediation Advocacy: theory; practice; and skills. So, there is a huge gap in the market for these education and training services. I developed commercial awareness, and my ‘commercial’ negotiation skills, whilst working at the ‘coal face’ as a negotiator of contracts for major projects, and in settling commercial disputes, when working in-house in my late 20’s and early 30’s. To me these skills are like riding a bike. However, they are not obvious. At 4pm GMT on Thursday 24 October 2024, I am presenting a one hour online seminar for the SCMA worldwide about ‘Mediation Advocacy in Trust & Estate Disputes.’ In this online talk I will share with my global audience some of the secrets of successful commercial negotiation that I have learned over my long career, which are transferable to the successful negotiation of terms of settlement in a trust/estate dispute. The 1st secret – is ‘Think about the dispute as being a commercial proposition/transaction!’ It is easy when you know how. But I wonder, how many times have you and your counterpart, when meeting in Mediation, thoroughly prepared to actually do this? I would love to hear your thoughts and about your experience of the commercial sophistication, or lack of it, by your counterparts in negotiating a ‘commercial’ deal in Mediation, as I suspect that the significant gap I have spotted in the teaching of students and professional training of lawyers, is not liimited to my jurisdiction!

This is a brief extract from the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2^nd Ed The Contentious Probate Handbook for the Law Society:

There are two reasons why this is so:

(1)     A party in dispute (P.1) is better off pursuing an ‘unconditionally constructive’ relationship with their opponent (‘P.2’), whether or not P.2 reciprocates, because ‘relationship issues’ do not fit the ‘Prisoner’s Dilemma’ model in ‘Game Theory.’

(See further: Poundstone, William (1993) Prisoner’s Dilemma: John Von Neumann, Game Theory, and the Puzzle of the Bomb, Anchor Books; Wisdom University (2023) The Art Of Game Theory: How To Win Life’s Ultimate Payoffs Through The Craft Of Prediction, Influence, And Empathetic Strategy (Navigate The Labyrinth Of Decision Complexity); and Fisher, Roger and Scott Brown (1988) Getting Together – Building Relationships, Penguin Books). So, the more P.1. (i.e. as the ‘adult in the room’) works to understand P.2, the more P.1 can anticipate P.2’s moves, even if hostile. Mutual understanding requires the adoption by P.1 of an ‘unconditionally constructive’ approach to P.2.

(2)     If P.1 pursues a ‘strategy of attrition’ against P.2 in litigation, not only is this likely to later come back and bite P.1 in costs, i.e. resulting in only a ‘pyrrhic victory’ if he wins, but it will also lead to an escalation of costs on both sides. That is because if P.2 counter-retaliates,  ‘partisan bias’ will cause P.1 to evaluate P.2’s behaviour as being disproportionate and worse than his own. Since P.1 is likely to interpret P.2’s behaviour as worse than P.2 intended, P.1 will reciprocate with behaviour, that in costs, is even worse, i.e. to up the ante, as in a game of poker. (See further, Lubert, Steven (2006) Lawyers’ Poker – 52 Lessons That Lawyers Can Learn From Card Players). This behaviour leads to a downward spiral of both substantive actions and reactions in what is the litigation equivalent of ‘escalation dominance’ in war, until no one is left standing.

Instead, P.1 can pursue an ‘unconditional strategy’, without risk. As Fisher and Brown wisely observe on p.202 of their book (see above), ‘if you are acting in ways that injure your own competence, there is no reason for me to do the same. Two heads are better than one, but one is better than none.’ See, ‘Adopt an unconditionally constructive approach to your opponent – treat him as a partner’, below.

Thus, how you conduct yourself as a Mediation Advocate will determine whether a dispute will de-escalate or escalate.

That is a big responsibility for all of the professionals involved in a Mediation. It is also presents them with a shared opportunity to deliver an outcome that is acceptable and satisfactory to the parties in dispute.

The following is an extract from the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2nd ed Contentious Probate Handbook, for the Law Society:

‘Conclusion.

Mediation is a game. The essential skills of Mediation Advocacy, i.e. ‘rules of the game’, are:

(i)     Follow the Mediator (M’s) ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative i.e. ‘third-way’ to litigation, by entering into a constructive exploration of the existence of common-ground, which first requires M to enquire about your lay client’s wishes, needs, priorities, and reasons.

(ii)    Be ready to not only negotiate, but also to structure and document the terms of a deal – which may be complex. You must be ready and willing to work side by side with the other Mediation Advocate(s) (‘MA’s’) without their lay clients (‘P’s’) being present, in order to isolate constraints and work out solutions, that they can sell to their lay client(s), and vice-versa. This requires the establishment of a ‘working relationship’ between the Mediation Advocates, through M, whereby in each other’s eyes, the MA’s are not rival competitors, but partners, working together to find a way of dealing with their lay clients’ ‘differences’, by seeing these differences as a common ‘challenge’. So, the MA’s must work with M to bring about this paradigm shift in thinking.

(iii)    This requires the development by each P of a ‘settlement range’ (‘SA’) ahead of the Mediation Day. The extent to which each P’s SA overlaps with the SA of the other P/P’s = common ground (‘CG’). In a Trust/Estate dispute CG may be capable of expansion before division and distribution – see Chapter 8, below.

(iv)  Thus, before the Mediation Day each MA must have a candid discussion with their lay client i.e. P, about how much is ‘enough’, i.e. about what is the ‘price of doing a deal?’ That conversation should be prefaced by reminding their lay client about what they advised during their very first conference, i.e. that litigation always involves an unquantifiable amount of litigation risk for all parties involved – so, at what point ‘is the candle no longer worth the flame?’ Then each P can make an informed and calibrated commercial decision about when ‘to deal’ and ‘when to walk away from the table’, before they engage as a ‘player’, in the ‘Mediation Game.’

The folloiwng is a brief extract from the ‘Mediaiton Advocacy Skills Section’ of my forthcoming book, the 2nd Ed of the ‘Contentious Probate Handbook’, which I am writing for the Law Society:

‘This is a technique the author applied when negotiating a major contract for Rolls Royce in Malaysia in 1990, which was awarded. The process began at the end of a day during which two teams of negotiators had sat on opposite sides of a conference table from each other. The author asked the lead legal negotiator to stay back on his own after everybody else had left the room. He agreed. The author then sat at right angles to this negotiator. At first, the other negotiator was uncomfortable doing this. However, once we started talking, his focus shifted from where we were sitting, to what we were talking about. This meeting between us, i.e. on our own, and sitting at right angles to each other at the end of the conference table, became the first stepping stone in establishing a working relationship between us as professional negotiators, based upon mutual respect and trust.

In their book, ‘Getting Together – Building Relationships As We Negotiate’ (1988), Roger Fisher and Scott Brown advocate an approach which they call an ‘Unconditionally Constructive Strategy.’ They argue that in any relationship we want to be able to take steps that both:
(a)          improve our ability to work together; and
(b)          advance our substantive interests.

The strategy, which is counter-intuitive, consists of six ‘guidelines’:

(i)  ‘Rationality’ – Even if your opponent is acting emotionally,   balance emotions with reason.
(ii)  ‘Understanding’ – Try to understand your opponent, even if he misunderstands you.
(iii) ‘Communication’ – Even if your opponent is not listening to you, enquire, consult and listen to him.
(iv) ‘Reliability’ – Even if your opponent is trying to deceive you, neither trust nor deceive him, instead be reliable, as integrity builds trust and confidence.
(v) ‘Non-coercive modes of influence’ – Even if your opponent is trying to coerce you, neither yield to coercion, nor try to coerce him. Instead, be open to persuasion, and try to persuade him, i.e. disarm him, then you can both enter into a constructive dialogue sitting ‘side by side’ together.
(vi) ‘Acceptance’ – Even if your opponent rejects you and your concerns as being worthy of his consideration, accept him as being worth dealing with and learning from.

When and how to use this paradigm shifting strategy, is of course a matter of instinct, judgement, and timing.’

When I woke up this morning I was thinking about how Diplomacy was conducted in the years before WW.1.

Diplomats belonged to the same class. They were recruited from the aristocracy. So, many of them already knew or knew of each other. As a class they shared common values. They were highly gifted individuals who nearly all had a faculty for languages.

Speaking their language is of course the hidden door to entering the world of another culture.

Many were historians or had a keen interest in history. They had an eye for detail & could express themsleves with brevity & accuracy.

Some also excelled in geopolitical thinking and strategy, & had original minds.

They were also logical, intuitive, & could ‘join-up the dots!’, i.e. see a pattern in a fog of information, & had acute political judgement.

The insight I had this morning is that these qualities equipped this small & talented pool of individuals to be highly effective Mediation Advocates, i.e. negotiators, because they not only trusted each other i.e. had personal integrity, but could speak to each other as ‘colleagues’ behind the curtain of conflict, as they respected each other.

You could not recruit from such a small pool today, because that would be regarded as elitist and wrong. Professional diplomats today might also add that their forebears, which included Viscount  Castlereagh, were ‘gifted amateurs’. I think that is unfair as he was anything but an amateur.

Today, it is hard to talent spot such people. Perhaps, early at University, however many may chose to work in the private sector rather than pursue a career as a diplomat. Not least because since the time of Margaret Thatcher, Prime Ministers have had a fraught relationship with the Foreign Office. The same happened in the US, see, ‘War on Peace: The End of Diplomacy and the Decline of American Influence’ by Ronan Farrow, who describes diplomacy as an ‘endangered profession.’

There is likely to be more conflict in the world over the next 10 years, so we need more ‘peace-makers.’

Professional Mediators, i.e. in the UK – CMC Registered Mediators, are ‘Peacemakers’ in the sense that their raison d’etre is dispute resolution through negotiation.

So here is my idea – Side by side with & involving the Diplomatic Corps create a civilian corps of Mediators recruited by competition from the private sector to train with & work on secondment to the Foreign Office as ‘Negotiators.’

If this initiative were copied by the UN, BRICS, & the US foreign Service, then together these institutions could create a breeding-ground for ‘global’ diplomats of the future, who share common values, and many of whom will get to know each other.

In other words, create a new ‘negotiator class/aristocracy’, from which Mediators can be trained/recruited to become global ‘peace makers’, that is open to all & based upon merit.

The following is a brief extract form the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2nd Ed of the Contentious Probate Handbook’ for the Law Society:

‘Empathetic communication – Listen to understand in order to be understood

The only way to get someone to do something is to make the other person want to do it. Remember that 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 your opponent, what you need to do is to try and understand them. Then you can understand why they have behaved as they did. MA.1/P.1 must put themselves into the shoes of MA.2/P.2, in order to see things as they do, i.e. each MA must understand the ‘opposing’ point of view.

Only unsatisfied needs motivate. In the hierarchy of human needs, next to ‘physical survival’ , the greatest need of a human being is ‘psychological survival’, i.e. to be understood, affirmed, validated, appreciated, and treated with respect and dignity.

‘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 reply.’

(The late Professor Roger Fisher in a two hour conversation with the author at Harvard Law School during a research visit as a Scholar from King’s College London to Harvard University in April 2002).

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. When you listen with empathy you open yourself up to being influenced. Being open to influence is the key to influencing others. Just as you can now see a problem through your opponent’s eyes, so can he see the same problem through your eyes. This opens the door to the creation of synergy by acknowledging, exploring and exploiting interdependence, see the ‘Interdependence dynamic’ below. Thus, when parties in dispute sincerely and deeply understand each other, they can open a hidden door to creative settlement in mediation. That is because their ‘differences’ have been transformed from being obstacles to communication and progress, into ‘stepping-stones’ to synergy. In other words, they can set themselves free from the past by becoming the joint-architects of their own future.’

This week I have made some stylistic amendments to the 611 page manuscript of my forthcoming book the 2nd Ed Contentious Probate Handbook. This was also an opportunity to include one or two more tips about advocacy in Contentious Probate hearings and trials. This includes the following brief extract, upon which I would welcome your comments. Over the next 19 days I am completing the writing of a section I have added about ‘Mediation Advocacy Skills.’ I will then re-submit the revised text to my editor for final approval.

‘Sir Nigel Davis KC, who before he became a Lord Justice of Appeal, was one of the author’s pupil-masters at 7 Stone Buildings (which is now Maitland Chambers), said in his parting advice to the author, that everybody has their own style of advocacy, i.e that there is no one way of excelling as an advocate – no magic formula. The author’s personal formula for presenting a persuasive argument is:

(a)            Test a submission by asking yourself  – ‘is what I am arguing obvious, i.e. common sense – does it sound just plain right?’
(b)            As a corollary, ask – ‘is this proposition reasonable?’
(c)            State a proposition in as few words as possible, i.e. be brief and keep it simple.
(d)            Avoid emotion.
(e)            Exude confidence, charm and elegance i.e. be suave, poised, and speak in a mild tone of voice.
(f)             Get the judge thinking.
(g)            Then make it appear that there is only one argument, and that the answer to the argument is obvious. In other words  make it look as if there was never an argument in the first place.
(h)            Become invisible behind the logical force of your argument, i.e. make it appear as if you are not even there, by irresistibly focussing the concentration of the judge on the argument as you state and develop it.
(i)              Speak slowly and with deliberation, so that when you have finished he will say to himself – ‘That argument must be right because it is obvious i.e. what Mr Islam says is plain common sense!’
(j)              Use anticipatory refutation to take the oxygen out of your opponent’s argument before it comes out of his mouth, see above.
(k)             When the judge smells blood – move in for the kill.
(l)              Kill your opponent with kindness. Then stop.’

The image is of the Church of the Knights Templar in the Inner Temple in London. 1EC Barristers is located on the other side at 3 King’s Bench Walk North, in a building which dates back to King Henry VIII. When I was a pupil Barrister I played ‘ping pong’ on the ground floor, which at the time was a junior Barristers’ common room. I did advocate for a swimming pool & health spa, but the Inner Temple were not persuaded. Perhaps I was just too young & foolish? Now, I know better. However, I doubt I can persuade Chambers to chuck out the leather topped antique desks & install a swimming pool/health spa. But wouldn’t that be great!

The highest praise for advocacy/persuasion that I ever received, was at Uppingham School, when a friend of mine said to me – ‘We can’t have you on the House food committee [which made suggestions to the Kitchen Chefs about meals] because we would all end up eating caviar, as you could make a person believe that there is a Pink Elephant standing up in the middle of Leicester Square!’

So, I failed in my attempt to get elected to the House food committee, and yes – we never got any caviar [do I hear you whispering in the background – ‘such a sad story’?]. However, I have never since, been able to walk through Leicester Square, without having a broad smile on my face! Curious & puzzled onlookers are probably thinking out loud – ‘what has he got to smile about – its’ raining!’ What I wonder is whether they can see the Pink Elephant in the middle of the Square! I must remember to point next time.

The following is a brief extract from a section about ‘Legal Argument & Reasoning’ in my forthcoming book, the ‘2nd Ed Contentious Probate Handbook’, which I am writing for the Law Society: –

‘If a judge thinks of an objection to your argument before either your opponent raises it or you address it, then he may believe that you have overlooked an obvious flaw in your argument. This creates a bad impression. Besides, counsel is under a duty to draw any adverse authority to the attention of the court. A skilled advocate will use anticipatory refutation to pull the rug out from underneath their opponent’s case by distinguishing the applicability of the counter-argument on the law and facts.

By failing to seize the initiative, i.e. by not addressing a potential objection before it is raised, you also appear weak. You will have given the impression that you are reluctant, rather than eager, to confront a potential objection head-on, i.e. ‘to take the bull by the horns’.

By systematically demolishing a counterargument, you turn the tables and put your opponent on the defensive. You are the poised to exploit the opportunity by reframing the opposing argument in your own terms and thereby to establish the optimal context for later discussion. By addressing counterarguments early, you will also appear to be more even handed and trustworthy.

However, anticipatory refutation is not without risk! By refuting, you do not want to inadvertently alert your opponent to the existence of a counterargument that has not thought of.

Aristotle advised responding advocates to rebut forcefully in their opening words. If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument. Having made that space, you must then fill it. An advocate does this by proceeding quickly to a discussion of their major premise, and factual matrix.’

As stated in Cicero, Marcus Tullius How To Win An Argument – An Ancient Guide to the Art of Persuasion, Edited, and Translated by James M. May (2016), Princeton University Press And Oxford, on p.61):

‘Every argument is refuted in one of these ways: either one or more of its assumptions are not granted; or if the assumptions are granted, it is denied that a conclusion follows from them; or the form of argument is shown to be fallacious; or a strong argument is met by one equally stronger. One of the assumptions of the opponent is not granted when either what they say is credible is denied to be such, or what they think is a parallel case is shown to be dissimilar, or a judicial decision is interpreted in a different sense, or decisions in general are denied validity, or what the adversaries regard as sound evidence is denied to be such, or one or both horns of a dilemma are shown to be unsound, or an enumeration is demonstrated to be incomplete, or a simple conclusion is shown to contain a fallacy. For everything which is used in argumentation, either as a probable or rigorous proof, must come under one of these heads.’

See my previous blog – ‘Evaluating the cost-effectiveness of Commercial Mediation v. Litigation using the Pareto Principle / 80:20 ratio.’

The following is a brief extract from my forthcoming book the 2nd Ed Contentious Probate Handbook (for the Law Society). I have just written these paragraphs. Note the practical insight at the end. This has just occurred to me:

‘Whilst this example is arithmetically simplistic, when you compare the cost-effectiveness of Mediation as a process to litigation, by analogy to the ‘Pareto Principle’ / ‘80:20 rule’, it is self-evident that valuable time and money can be saved by entering into mediation early, instead of marching to war, and possibly mutual self-destruction.

Put another way – if you think of Mediation as being a ‘time planning exercise’, it can generate 92.5 more free/extra time for living a happy life, when compared to litigation, whilst at the same time saving you 92.5% of the cost of resolving a family dispute.

This holds for both parties in the dispute.

So, instead of a ‘double whammy! ‘, the net outcome is a double benefit. That is because you have maximised your net output (i.e. ‘gains’) by minimising your input.(i.e. ‘losses’ – time and money).

What this thought experiment also reveals, is where one party applies at a CMC for mediation to be ordered without the consent of the other, and the judge refuses the application on the ground that – ‘the parties are too far apart!’, then the judge may be successfully appealed.

That is because in mediation, there can never be a scenario in which parties ‘are too far apart’, as time and money can always be saved by entering into mediation early instead of proceeding to trial.

There may of course be other valid reasons for refusing to order mediation, in which case the judge will need to develop and state his reasons. If he fails to do so, then he is likely to be challenged by way of an appeal, if of course that is how the disappointed applicant decides to proceed.’