When I woke up this morning the following question popped into my head:

Can Med-Arb be used as a process to resolve a claim for the restitution of ancient art & antiquities, whereby Museum Trustees [‘P.1’] (acting on external legal advice/directions or some sort of ‘blessing’ from a court of equity & thus in good faith & apparently in accordance with their duties & powers), can agree a process ‘ground-rule’ with the claimant [‘P.2’] –

“That any applicable ethical principles of restitution explored, defined &
agreed during the Mediation phase of the process, may be applied by the
Mediator/Arbitrator during the 2nd i.e. Arbitration phase of the process, in
order to make a binding determination about what ethically is the right thing is to do, notwithstanding the legal merits of the claim”?

In other words, could Med-Arb as a process, result in a legally binding decision which takes into account applicable ‘ethical’ principles of art & cultural heritage restitution – by agreement?

Whilst I have not researched the question, I am not aware of a single precedent of where this has been done in the Med-Arb of an art restitution dispute.

If you know of one please cite it as a comment.

My next article, which I have started to research is entitled, ‘Duties & Powers of Museum Trustees in Settling Art Restitution Claims.’

My next book is provisionally entitled, ‘Mediation Advocacy in the Restitution of Ancient Art & Antiquities’.

I will start work on this book on 1st March 2025.

As I observe in my essay ‘Mediating Cultural Property Disputes’ on the ‘Mediating Cultural Property Disputes’ page at www.carlislam.co.uk:

‘At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law.
1.   ‘Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin.
2.   ‘Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention –  ‘the cultural heritage of all mankind.’
Is this tension capable of reconciliation by the determination of a judge sitting in an International Cultural Heritage Court established by either the UN or BRICS?
Unlike a common law ‘domestic’ judge, such an international judge could:
(i) Apply principles of International Cultural Heritage Law.
(ii) Espouse evolutive interpretations of International Law Treaties.
(iii) Consider factors external to the law such as: history; morality; ‘practical ethics’; and peculiar local customs, i.e. after hearing expert academic opinion and evidence.
(iv) Exercise judicial discretion in order to ignore the letter of Treaty law where it proves to be unjust or immoral, thereby creating a new body of international law jurisprudence, i.e. of ‘equitable’ principles based upon: (a) core tenets of ‘natural law’, and ‘distributive justice’; and (b) a ‘re-imagining’ of the core principles of international law evolved centuries ago by western legal philosophers, in order to satisfy the ‘cultural’ needs of what is now a globalised ‘civilization’/’community’ in a modern, post-colonial, and geo-politically ‘multi-polar’ era?
Could such an international court become an incubator and instrument of ‘creative’ co-operation between states, in contrast to being a blunt and ‘politicised’ tool of binary competition for scarce resources between states in the Global North v. states in the Global South?

‘The current legal regime does not always manage to accommodate the diverse and competing interests struggling with each other in the realm of cultural heritage. In addition, while ADR methods are to be preferred, it is rather unlikely that all cultural heritage controversies can be effectively resolved through these mechanisms. Furthermore, litigation appears inadequate, lengthy and costly. Overall, these problems support the case for the establishment of a permanent international court. One can argue that until there is a supranational body empowered to resolve disputes and penalise uncooperative nations, unethical stakeholders and criminals, persuasion or appeals to cooperation will not prevail if it is not in the interests of the stakeholder concerned.’ (‘The Settlement Of International Cultural Heritage Disputes’, by Alessandro Chechi (2014), Oxford University Press, pp. 204 & 205.)

This is a ‘Negotiation Behaviour’ strategy that I will be discussing in my online talk to members of the SCMA worldwide about ‘Mediation Advocacy in Trust & Estate Disputes’, at 4pm GMT on Thursday 24 October 2024. In summary:

·       The essence of ‘Principle-Centred Dialogue ‘(‘PCD’) lies in remaining open to persuasion by reference to objective facts and principles.
·       Between themselves, the Mediation Advocates can establish a dialogue based upon reason.
·       This can transform ‘competitors’ into ‘colleagues’ who collaborate in trying to establish objective facts.
·       Thereby, confrontation between them is diffused.
·  So, the Mediation Advocacy strategy is to focus on interrogating objective facts.
·  Making each other open to correction and thus to persuasion, is a pillar of PCD.
·       PCD is premised upon the idea that you cannot convince another person to be open to principles and objective facts you suggest, until you have demonstrated that you are open to principles and objective facts they suggest.
·  Thus, PCD is a two way street.

PCD is also linked to another Negotiation Behaviour strategy that I will be discussing – ‘Adopt an unconditionally constructive approach to your opponent, i.e. treat him/her as a partner.’

No – but it could!

The SCM applies to international ‘commercial’ disputes, (Art.1).

Only an international commercial settlement agreement can be enforced under the SCM.

Settlement agreements relating to ‘family’ & ‘inheritance’ are expressly carved out of the scope of the SCM by Art 2(b).

However, this could change if the Labour Government is switched-on to the opportunity to make the UK a mecca of off-shore and cross-border trust mediation.

As my colleague Jacob Meagher wrote in commentary he contributed about the SCM to my article – ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 2, published by Oxford University Press in Trusts & Trustees in September 2023:

‘The author believes that when enacted, the UK position will be updated, such that almost all mediated civil settlement agreements will be directly enforceable (international or otherwise), this is notwithstanding that
Art 1(2)(b) provides that the convention does not apply to settlement agreements ‘Relating to family, inheritance or employment law’. It is recommended that the UK depart from this provision as the benefits from doing so would allow the UK to become a mecca of off-shore and cross-border trust mediation as well as reinforcing our domestic probate, trust, and employment settlements, and doing away with the need to apply for Tomlin orders and thus wasting precious court time.’

Google also – ‘Consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) – GOV.UK.’

This states:

‘The mediation sector in the UK has grown considerably in the last 15-20 years, with the sector estimated to be worth £17.5bn in 2020, as businesses look for more cost‑effective methods of resolving disputes outside of the traditional routes of court‑based litigation and arbitration. Mediation is an important means of resolving cross‑border disputes, by enabling the disputing parties to reach a suitable and mutually acceptable resolution themselves, without having to go to court, saving valuable time and money. It is a process which the Government considers ought to be integral to the Justice system, and it is estimated that mediation can save businesses around £4.6 billion per year in management time, relationships, productivity and legal fees.’

So, the opportunity for the Labour Government to grow the UK economy by applying the SCM to international trust and estate disputes is enormous. This morning the PM stated that his Government’s priority was ‘wealth creation.’ Mediation in the UK of international trust and estate disputes is a wealth creator. So, will the Labour Government maximise this opportunity or squander it? Do the PM and Chancellor actually know about it, i.e. is it on their ‘wealth creation’ radar, or was what the PM said just rhetoric lacking in vision, granular understanding, and substance?

As I observed, in my recent post – ‘Requirement for Statements of Truth in key pre-action documents’, p.89 of the CJC Review of Pre-Action Protocols Final Report Part 1, August 2023′, states:

‘3.1 3.2 – The parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute. … There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings.’

In his excellent new book, ‘Advanced Mediation Advocacy’ (2024), on pp. 108 & 109, Andrew Goodman comments:

‘… You should advise your client that if the settlement agreement takes effect in law as a contract, it can be impeached and set aside like any other contract, for misrepresentation, mistake, undue influence or duress at the instance of the innocent party, irrespective of the fact it came about through mediation. Neither the party representative, nor the mediator can become a conduit for fraud. … One of the skills of the mediator is to suspend disbelief in the face of the obvious, this in order to create rapport with both sides, offer empathy to each and project neutrality. The bi-partial role of the mediator is designed to prevent obvious wrongdoing, such as allegations of fraudulent misconduct, from undermining the process from the outset. However ethical issues which go directly to the continuing viability of the mediation need to be addressed. There is in such circumstances a line which, if crossed, will force the mediator to end the mediation. He or she cannot simply rely on the presence of party representatives to avoid the consequences of ethical issues.’

Thus, before any statement of fact is alleged, i.e. in a key P.1 pre-action communication, or by MA.1 to M on behalf of P.1, or by P.1 to M (i.e. in the presence of MA.1), which could later result in a challenge being made by P.2 about the validity of a settlement agreement reached in mediation, e.g. on the grounds of misrepresentation, a prudent & dilligent MA should rigorously interrogate & reality-test P’s narrative.

This scrutiny needs to undertaken before any fact is stated in: (i) a key pre-action communication; &/or (ii) mediation.

In other words, a prudent & dilligent MA must accept what P tells him at face value, i.e. without undertaking a rigorous enquiry & independent fact-checking.

Where e.g. P.1/MA.1 have stated ‘X’ in a key pre-action communication & in mediation P.1 instructs MA.1 to assert ‘Y’, then if only X or Y can be true, i.e. because logically X & Y cannot both be true, then MA.1 must inform P.1 that since P.1 has already ‘pinned his colours to the mast’ by asserting X, that for professional, i.e. ‘ethical’ reasons, MA.1 will no longer be able to represent P.1, if P.1 insists that MA.1 assert Y. Axiomatcially, a legal representative should decline to act for P.1 by advancing a case based upon Y, where P.1 (whether legally represented at the time or not), previously advanced a case in a pre-action communication, based upon X. That is because Y is obviously & self-evidently a lie as it contradicts X & cannot logically be reconciled with & distinguished from X.

This weekend I have been writing up my Speaking Notes & Slides for the talk I am presenting online to members of the SCMA on 24 October about ‘Mediation Advocacy in Trust & Estate Disputes’.

The structure of the talk is as follows:

SLIDE 1 –  Understdning P’s objectives & reasons.
SLIDE 2 –  Commercial planning.
SLIDE 3 –  Hidden costs.
SLIDE 4 –  Hidden value & the Interdependence paradigm.
Slide  5 –   Deal-Making Zone (‘DMZ’).
SLIDE 6 –  Offers.
SLIDE 7 –  Negotiation mindset.
SLIDE 8 –  Negotiation strategy.
SLIDE 9 –  Negotiation behaviour.
SLIDE 10 – Conclusion.

To provide you with a flavour of the talk, ‘Slide 2 – Commercial planning’ states:

·       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 & thereby avoiding the incurrence of unnecessary costs = common ground.
·       ‘Expanding the pie’ by releasing & sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground..
·       MA [i.e. a Mediation Advocate] needs to explain to P [i.e. their lay client]:
(i)     That there is always an unquantifiable element of risk in any trust/estate litigation for all parties involved.
(ii)    ‘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.’
(iii)    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.’
(iv)   Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’ which becomes the foundation of opening & closing offers.
(v)    P’s calculation should factor in both hidden costs & potential hidden value.’

I am planning to develop this talk into a 3 hour course that I can teach in 2025, both in person & online. As far as I am aware, this will be the first course of its kind that has been designed for contentious trust/probate practitioners. Many of the Mediation Advocacy principles that I discuss are also of general application & this course may be of wider interest i.e. to commercial mediation practitioners around the world.

The world is potentially a Zoom Mediator’s oyster!

However, there are elephant sized traps for the unwary Mediator who is not aware of how culture & language can impact what is being said, i.e. what a participant [‘P’] means. That is because their values are not the same as yours, so it is a mistake to correlate their behaviour with what people mean when they behave in the same way/use the same words in your own culture. What P means may in fact be the opposite of what you hear him/her saying. So, you will miss vital cues, clues & signals, unless as a Mediator you are ‘culturally aware.’

Broadly speaking, there are 3 prototypes of culture in the world today + complex ‘hybrids’:

(i) ‘Dignity cultures’ – Australia, Canada, Northern Europe & USA (i.e. ‘Global North’).
(ii) ‘Face cultures’ – China, S.E. Asia & Japan.
(iii) Honour cultures’ – MENA, Latin America & parts of Southern Europe.

‘Global South’ – which includes India, Iran, Russia, & South Africa are complex & hybrid cultures.

In preparing for an international Mediation, a Mediator needs 1st to understand the ‘cultural environment’ in which the Mediation is going to take place.

The entry point for a student/practitioner to increase their awareness of ‘cultural proclivity’, is ‘anthropology’.

Of course, to really understand a culture, you have to live amongst and work with those whose culture it is.

To a small extent, I did this as a young man when I worked in-country in SE Asia, including China, India, South Korea & Malaysia, as an international contract negotiator working for Rolls Royce & Alstom.

However, there was much that I missed, because I didn’t speak oriental languages.

So, if you are a student and are thinking about a career as negotiator, diplomat or Mediator, I recommend that you learn some foreign languages and spend time traveling and working in the countries where you would eventually like to develop a practice as an international Mediator.

For the rest of us, the next best thing is to read about a culture through the eyes of an anthropologist.

So, I have ordered a print to order copy of Palmer, Michael and Simon Roberts (2020) Dispute Processes: ADR and the Primary Forms of Decision Making 3rd ed, Cambridge University Press. I have also added this title to the Research Bibliography on the ‘Mediation & Advocacy in International Dispute Settlement’ page at www.carlislam.co.uk & will be reading this book in September. I also recommend, Fukuyama, Francis (2011) The Origins Of Political Order – From Prehuman Times to the Frenach Revolution, Profile Books & Ury, William (2024) Possible – How We Survive (and Thrive) in an Age of Conflict, Harper Business.

Comments added:

As Andrew Goodman observes on pp 86 & 87 of his book ‘Advanced Mediation Advocacy’ (2024) – ‘The danger in categorising cultural groups is that the mediator [‘M’] and the lawyer may both fall into the trap of stereotyping participants [‘P’] in the process. In reality, recognising a prototype is not necessarily going to be the key to unlocking cross-cultural difficulties, and should not be regarded as such. At best it may give [M] a steer as to whether it is more important to spend a lot of time in the exploration phase or to move into more of an exploratory/offer phase leading to negotiation quite quickly during the course of the mediation. … In the mediation process where there are these different cultural aspects, it should be clear whether [M] will make more progress by keeping the parties together, or by keeping them apart. Without over generalising, looking at these socio-cultural backgrounds provides some introductory guidance as to the [P’s] and is something of an aid in how to prepare. It should be treated as a starting point … Of course most modern societies, particularly post-industrial societies, will now have a blend of these prototypes. …’

P.89 of the 92 page ‘CJC Review of Pre-Action Protocols Final Report Part 1, August 2023’, states:

‘3.1 3.2 The parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute. As the matter progresses, you will be required to give signed confirmation of the truth of certain matters in the dispute. There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings. A statement of truth confirms that a party believes that the facts in a document are true.’

So, if in a ‘Key’ pre-action communication/document which requires a statement of truth, a party knowingly makes a false representation e.g. by alleging a revised factual narrative that is demonstrably false, i.e. because logically, it is self-contradictory, then it would appear to follow that this may result in a criminal investigation and prosecution.

If my understanding is correct & if these proposals are implemented, then this will deter unmeritorious claims before significant costs have been incurred, i.e. ‘nuisance value’/’try-on’ claims.

That would be a litigation “cultural” game-changer, because I suspect that a lawyer working under a CFA, would not want to go near such a claimant with a barge-pole, as in effect these proposed changes will result in a new and more rigorous standard of pre-action diligence, not only by the parties themselves, but also by their legal advisors – which of course will be an ongoing process throughout the conduct of the litigation.

Likewise, because what is said and written in a Mediation process, e.g. in a ‘Position Statement’, is and remains confidential, i.e. provided that is what the Mediation Agreement clearly & unequivocally states & all participants have signed it, then this may also encourage parties to enter into Mediation before they openly present any formal and detailed statement of their case in writing. In other words, if may encourage parties to engage in Mediation before a letter of claim has been issued, which could result in considerable cost savings. In a trust/estate dispute this is precisely the moment when preservation of the capital value of a trust fund/estate can be maximised by doing a deal & thereby avoiding the incurrence of unnecessary litigation ‘production’ costs.

Notes added:

NB paras 8.2 & 8.3 of the Report – ‘Sanctions for Materially Changing Position’. To my mind, the decision not to apply the rule in the Professional Negligence PAP to all PAP’s & generally, i.e. to those claims which do not have a PAP, e.g. Contentious Probate claims, does not axiomatically relieve a claimant who makes a false allegation in a ‘key’ pre-action communication/document signed under a ‘Statement of Truth’, from liability for making a statement which they knew at the time was ‘false’. In other words, this is not a procedural defence to ‘lying’. I think that a distinction can be made between: (i) unnecessarily causing costs to be incurred by presenting a revised narrative – which may of course be justified on the facts if new facts emerge, i.e. not ‘lying’; & (ii) the behaviour of a ‘delusional’ party (‘P’), who not only misleads the court by ‘lying’, but by knowingly making an allegation that is false, has thereby abused the litigation process. For example, where P ‘moves the goal posts’, by in effect inventing a fresh narrative, which logically, is contradicted by what he has previously asserted. Such a party will have dug themselves into a hole & the more they dig, the deeper the hole will become. What is your view?

In the new ‘ADR Normal’ there is of a course an increased risk that a party & his lawyer will ‘attend’ Mediation in order to: (i) go on a ‘fishing expedition’; and (ii) subsequently revise their narrative. So, where a Mediation fails, because it appears that a participant never had any intention of making an offer of settlement or of considering one, then should a Mediation Agreement provide that a participant may admit evidence of ‘apparent lack of good faith ‘ obtained during the Mediation, in support of a submission of suspected ‘lack of good faith’, when making costs submissions at the end of a trial, i.e. so that even in the other participant wins, all he obtains at trial is a ‘phyrric victory’?

Google:
– Civil Justice Council publishes final report on Pre-Action Protocols – Courts and Tribunals Judiciary
– CJC-PAP-report-Aug-23-FINAL.pdf (judiciary.uk)

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!