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.

Over the next 3 weeks I am completing my reading of books about negotiation which I have collected over the last 4 years. 4 more to go – books I mean!

I also have a handbook of my own, that I wrote & which accompanied me overseas when I was an itinerant in-house negotiator working for Rolls Royce & Alstom in Paris.

I glance at this from time to time & today was reminded of the
following insight which I noted down in the handbook in 1996 –

‘The only way to get someone to do something is to make the other person want to do it.

So:

1. See things from your opponent’s angle.
2. Understand their point of view.
3. Ask yourself – ‘How can I make this person want to enter my ‘deal-making zone?’

In other words, ‘bait the hook to suit the fish!’

This requires rigorous preparation, charm, subtlety, patience, trust & flexibility.

What you are in effect doing, is manipulating your opponent without him realising it, i.e. because he thinks your proposal was his idea.

So, the 1st key skill in mediation advocacy is ‘listening’!

I am going offline at the end of this week for 2 months to complete work on the 2nd ed of the Contentious Probate Handbook which is currently in a 6-8 period of editorial review. I am also preparing notes for a talk I am giving online at 4pm GMT on Thursday 24 October 2024 to the SCMA worldwide about ‘Mediation Advocacy in Trust & Estate Disputes.’

Time permitting in July & August I will post further short extracts from my handwritten ‘Negotiation Handbook’.

I like to think of this as being both a trusted old friend & a book of ‘secret’ techniques for negotiators. However the more I read, the more I discover that these techinques are based upon ancient wisdom – including of course the strategies of Sun Tzu. So – there is nothing new under the ‘Sun’!

From August 2024, I am writing a new practical handbook that I will offer for publication – ‘Performers’ Rights & Mediation of Music Disputes.’

The book is about legal & commercial negotiating principles for parties, legal representatives & mediators involved in a music business dispute.

For more information please visit the ‘Performers’ Rights & Mediation of Music Disputes’ page at www.carlislam.co.uk.

At the top of the page you will also find links to my articles published earlier in the year in the Law Society Gazette:

– ‘Golden rule in commercial mediation.’
– ‘Commercial Mediation of Music Disputes.’

These are free to read online – just Google.

I started work on the negotiation principles content for the new book in June.

Depending upon my available free time, I plan to complete the writing of the book before 1 January 2025. Work in researching the book began over 12 months ago.

From 1 March 2025 I also plan to write a book for academic publication entitled – ‘Cultural Heritage Law & International Dispute Settlement’. See the ‘Cultural Heritage Law & International Dispute Settlement’ page at www.carlislam.co.uk.

Both books have their genesis in the Diploma in Art Law course which I undertook part time at the Institute of Art & Law in London for 3 years and completed in December 2023. The legal principles underlying fiduciary duties owed by managers & their companies to artists are well known to Chancery practitioners. However what Chancery practitioners who have not studied Art Law may not realise, is that many of the same legal principles which underly the rights of visual artists, i.e. of artists who paint, draw, take photographs, or make sculptures, also apply to the rights of performers in the music industry. I made this connection when I was studying the ‘Artists Rights’ (including copyright and moral rights) module of the course. To my surprise and delight, many of the cases were in fact about music disputes. For ‘Music Law Geeks’ – of which I am proud to be one, there is a table of cases on the ‘Performers’ Rights’ page at www.carlislam.co.uk. The negotiated settlement of a music dispute is not a ‘nil-sum’ game. If you understand these legal principles – which are complex and multi-jurisdictional, you can imagine/facilitate the exploration & discovery of contractual solutions that are more commercially advantageous to the parties in dispute than going to court. Unless either the relationship between the parties has irretrievably broken down or the will does not exist to collaborate and ‘do a deal’, then as in the words of the late and great George Michael, commercial mediation can not only – ‘Heal the pain’, it can also liberate the parties, by enabling them to work out a creative deal to their mutual advantage. This can be achieved by maximising ‘joint-gains’ in a way that furthers each party’s individual interests. This I hope, is where my next book will add value!

At the invitation of LinkedIn I have just contributed a second idea to their discussion – ‘What strategies can you employ to overcome impasses in negotiations?’

The technique is simple – you might even think that it is obvious, i.e. avoid a ‘deal-breaker’ impasse in the first place.

I first wrote about this insight in my article – ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 1′, which was published online by Oxford University Press in Trusts & Trustees 14.11.2022, and in print for worldwide distribution in February 2023. There is a link to the article on the ‘Publications’ page at www.carlislam.co.uk.

For LinkedIn I wrote:

‘In my experience of negotiating the settlement of probate disputes, it is always better to be prepared to advance to a ‘known’ position than to retreat into the ‘unknown’. The acme of preparation is the development of a ’settlement range’. …’

In my forthcoming book, the 2nd edition of the ‘Contentious Probate Handbook’, which I am working on for publication by the Law Society of England & Wales later in the year, I outline a simple ‘step by step’ methodology for developing a bespoke ‘settlement range’ in a probate dispute.

When negotiating the settlement of a commercial dispute, you can extrapolate and apply the same basic building blocks.

Over the Summer I will be writing an in-depth article about ‘negotiation’ skills for academic publication, as the foundation for my online talk to members of the SCMA worldwide in October about ‘Mediation Advocacy in Trust & Probate Disputes.’

LinkedIn recently invited me as an expert on ‘negotiation’ to contribute a comment to a discussion on LinkedIn entitled – ‘What strategies can you employ to overcome impasses in negotiations?’

My reply is set out below. While seemingly obvious, you will not find it in any book about negotiation that I have read. This occurred to me whilst reflecting on an important commercial negotiation which was successful, when I worked in-house as a commercial lawyer negotiating contracts around the world for Rolls Royce & Alstom (in Paris):

‘If you can isolate, agree and understand the “constraint”, i.e. the road-block to agreement, then in my experience, quite often the solution presents itself to you almost instantly, in a flash. Very often the answer is obvious, and has been staring you in the face. However, for the brain to process the dynamics driving the impasse, in order to develop a solution through sudden insight, you need first to understand what those dynamics are and how they operate. It is not genius. It is logic + imagination.’

To probe, a Negotiator/Mediator may ask:

‘Why is this important to you?’

‘Why is this a problem for you?’

Today I would add – If a ‘constraint’ can be transformed into, or be re-framed as, an ‘opportunity’, then the result may be a ‘win/win/win’ solution all round – see my recent blog below – ‘Negotiation Skills & Strategies.’

This requires ‘deep’ and ‘intuitive’ listening skills, ’emotional intelligence’, and ‘clear thinking’.

You not only have to put yourself in the other person’s shoes. You also have to help them find a way around or through the apparent ‘road-block’, which in their mind works for them. In other words, you have to help them to work out a solution for themself. That requires subtlety.

To read the replies to the LinkedIn discussion provided by all invited experts – see: What strategies can you employ to overcome impasses in negotiations? (linkedin.com)

Website Motto: ‘Quam fluctus diversi, quam mare conjuncti – though the waves are many, the sea is one.’

Extract from the homepage:

‘This website contains an evolving bank of legal materials, on-line library resources, news, talks, articles, and blogs, about the dynamic and inter-related subjects of:

(i)   Conflict;

(ii)  International dispute settlement; and

(iii) Mediator tools, i.e. how a mediator can facilitate the negotiation of a road-map for peace (i.e. a ‘Peace Process’), which results in the agreement and practical implementation of a coherent, comprehensive and sustainable ‘political’ solution to the underlying ‘root’ and ‘dynamic’ causes of the conflict (i.e. a ‘Peace Treaty’). Thereby, ensuring peace, underwritten by security guarantees and International Law.

I founded this website in June 2014, and it was listed with my permission, on the website of the United States ‘American Foreign Service Association’ (the ‘AFSA’) based in Washington DC underneath the heading ‘Codes of Conduct from Other Services/Countries’ (http://www.afsa.org/ethics).

According to Google Analytics, in under 10 weeks the website grew from a zero readership to a weekly audience spread across Canada, the USA, South America, the Caribbean, the UK, the Netherlands, Belgium, Germany, France, Spain, Italy, Ukraine, the Russian Federation, North Africa, the Gulf states, Pakistan, India, China, South East Asia, and Australasia. …

I update the website weekly to assemble material for my next book (see the ‘Cultural Heritage Law & International Dispute Settlement’ page at www.carlislam.co.uk), including articles published in Foreign Affairs Journal, to which I subscribe. On the website, these articles are only accessible to myself.

The latest videos to be added to the ‘Conflict & Dynamics’ page at www.diplomaticlawguide.com under the sub-heading – ‘Articles & Talks’ include:

-Prof. Jeffrey Sachs on Ukraine, Gaza & Taiwan: The US is Risking ALL OUT WAR with Russia & China (youtube.com).
-Israeli historian Ilan Pappe launches new book ‘Lobbying for Zionism on Both Sides of the Atlantic’ (youtube.com).
-The Israel Lobby Is Real. Here’s EXACTLY How It Works. | Novara Media
-Israel’s Gaslighting TORN APART By Palestinian-American Analyst – w/. Omar Baddar (youtube.com).
-West Sleepingwalking into Major Wars – Alastair Crooke, Alexander Mercouris & Glenn Diesen (youtube.com).
-ICC must investigate British ministers for complicity in Gaza war crimes (declassifieduk.org).

In an age when youtube channels are overtaking mainstream TV news channels, not just in the UK but globally, as a first port of call by members of the public for accurate and unbiased journalism about conflicts and international relations, it is my hope that visitors to the website will be able to quickly access news stories and commentary by leading journalists and academics, which do not appear on mainstream TV channels.

Above the entrance to the Oracle at Delphi there is a Greek incription – ‘Γνῶθι σαυτόν’ (‘gnōthi sauton’). It means, ‘Know thyself!’ I am currently reading through 9 books on negotiation as preparation for an online talk I am giving to members of the SCMA worldwide at 4pm GMT on 24 October 2024, entitled – ‘Mediation Advocacy in Trust & Estate Disputes.’ Today I have started to read ‘Getting to Yes With Yourself’ by William Ury (2015). He describes the book as the missing ‘prequel’ to ‘Getting to Yes.’ On p.6 he sets out 6 challenges. The 1st is that instead of ‘judging yourself’, do the opposite & ‘listen’ empathetically to yourself for ‘underlying needs’. So, ask yourself – ‘what do I really want/need & why?’ – why am I doing this & putting myself through this & for what?, i.e. what is this dispute/claim really all about? In contentious probate disputes, there is often a subliminal ‘driver’ which is not just money. It may for example be a feeling of having been taken advantage of my elder sibling who is a bully, i.e. a deep-seated feeling of ‘injustice’ which empowers a party to retaliate through litigation and thereby obtain some form of justice/redress & to inflict pain. As any Barrister who is worth their salt will tell you, the ‘Law’ and ‘Justice’ are just about on nodding terms. Litigation is a minefield. So, this may be a costly mistake which can exceed the value of a disputed estate/equity. Thus a mediator must ‘listen’. There are 3 levels of listening, which are discussed in ‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), at pp. 99, 100 & 102. ‘By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the … mediation. Among its benefits, reflective listening:
·       builds trust and respect,
·       enables the disputants to release their emotions,
·       reduces tensions,
·       encourages the surfacing of information, and
·       create a safe environment that is conducive to collaborated problem-solving.
Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’

The three levels of listening are:

‘Listening at level 1 – This is listening at the other person’s level and is really all about self, not the other person and as such, in a mediation, it can be disastrous. Signs that the listener is at level 1 include:

• Asking for more facts such as “how many?” – “when?” – “Who?” – “What’s the history?” When the participant hasn’t mentioned them.
• Noticing an inner dialogue that results in you asking yourself such questions as:
• “What can I ask next?”
• “Was that a good enough question?”
• Wanting to give advice; and
• Talking about you with “I” and “Me.”

Listening at level 2 – Here the listener and the other person are as one in an absorbing and deeply focused discussion that is characterized by:

• Rapport with body language, voice and energy levels matched.
• A flowing conversation, yet with the other person doing most of the talking.
• The listener is picking up on language, skillful and short questions are asked concentrated on the other’s agenda.
• The listener is summarizing, reflecting and clarifying in order to extend the other’s thinking.
• The listener hears what is not being said, as well as what is and is listening for underlying meanings.

Effective and valuable dialogue takes place at this level. Mediators can certainly regard level 2 listening as their default level.

Listening at level 3 – At level 3 the listener becomes more aware of:

• Emotion.
• What risks might be taken in the conversation.
• What are the other persons underlying choices and what is really at stake.
• The listener trusts his or her intuition that there may be an emotional or intellectual connection with the other person.

Level 3 is a moment of real connection that most people seldom achieve in normal everyday conversations.

By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the negotiation or mediation. Among its benefits, reflective listening:

• builds trust and respect,
• enables the disputants to release their emotions,
• reduces tensions,
• encourages the surfacing of information, and
• creates a safe environment that is conducive to collaborative problem-solving.

Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’ (‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), The Society of Mediators, pages 99, 100, and 102).

In Heyes v Holt, 2024 EWHC 779 Ch, HHJ Paul Matthews granted the defendant an order requiring the claimants to pay a sum of money into court, with the sanction of dismissal of the claim if this was not done within a specified time:

‘[37]. … CPR rule 24.6… provides: “When the court determines a summary judgment application it may— … (c) make its order subject to conditions in accordance with rule 3.1(3).” Rule 3.1(3) provides: “(3) When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.” …

[39] In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119, Males LJ (with whom Hamblen LJ and Dame Elizabeth Gloster agreed) said: “43. … [T]here is a category of case where the defendant may have a real prospect of success, but where success is nevertheless improbable and a conditional order for the provision of security may be made. This is the typical case where a conditional order may be made requiring the provision of security for the full sum claimed or something approaching that sum.”
[40] Nevertheless, the court made clear that the caselaw had laid down certain principles to be observed in exercising this jurisdiction: “45. [1st where D] has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for the defendant to comply … 46. [2nd] the burden is on [D] to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court … 47. [3rd – D] must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it … 51. [4th] despite the fact that the Rules expressly contemplate the possibility of a payment condition being imposed, it is not incumbent on a defendant to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order …54. [5th] the court’s power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be appropriate in other circumstances, for example … if there is a history of failures to comply with orders of the court or there is a real doubt whether the party in question is conducting the litigation in good faith. However, the court needs to exercise caution before making a conditional order requiring a defendant who may have a good defence to provide security for all or most of the sum claimed as a condition of being allowed to defend … ”

In para [69] the learned judge directed:
‘For the reasons given above, (i) I dismiss the application for summary judgment, but conditionally on charges of various interests belonging to the claimants being made in favour of the defendant, or alternatively payment into court, in accordance with paragraphs 47-49 above; (ii) I will order a stay of the claim to allow for a second mediation; … I express the hope that the parties will be able to resolve their differences without the need for a lengthy and expensive trial.’
So, the Defendants have in effect called the claimant’s bluff. This case will now almost certainly settle in mediation.