‘The Power Paradox in Mediation’

The ‘Power Paradox is that the harder P.1 makes it for P.2 to say ‘no’, the harder P.1 makes it for P.2 to say ‘yes’.

‘The key mistake we make when we feel frustrated is to abandon the problem-solving game and turn to the power game instead. Overcoming the power paradox means making it easier for the other side to say yes at the same time that you make it harder for them to say no. Making it easy to say yes requires problem-solving negotiation; making it hard to say no requires exercising power. You don’t need to choose between the two. You can do both. Treat the exercise of power as an integral part of the problem-solving negotiation. Use power to bring the other side to the table. Instead of seeking victory, aim for mutual satisfaction. Use power to bring them to their senses, not to their knees. If the other side refuses to come to terms despite all your efforts, it is usually because they believe they can win. They believe that their best alternative to negotiation—their BATNA—is superior to your golden bridge. You need to convince them that they are wrong. Use your power to educate the other side that the only way for them to win is for both of you to win together. Assume the mind-set of a respectful counsellor. Act as if they have simply miscalculated how best to achieve their interests. Focus their attention on their interest in avoiding the negative consequences of no agreement. Don’t try to impose your terms on them. Seek instead to shape their choice so that they make a decision that is in their interest and yours. Using power to educate the other side works in tandem with building them a golden bridge. The first underscores the costs of no agreement, while the second highlights the benefits of agreement. The other side faces a choice between accepting the consequences of no agreement and crossing the bridge. Your job is to keep sharpening that choice until they recognize that the best way to satisfy their interests is to cross the bridge.’  William Ury | Getting Past No – Use Power to Educate

As I wrote in my article, ‘Mediating probate and trust disputes – process challenges and tools: part 2’, which was submitted to OUP today for peer review, ‘While you can lead a horse to water, you cannot force it to drink. However, once they have come down the hill to the edge of the river, and can see what is on the other side, then psychologically, most P’s will want to cross the river rather than climb back up the hill. The bridge across the river is the existence of common ground. Common ground already exists in preserving the capital value of the estate/trust fund. If the P’s will allow M to show them the way to the river, they may discover that there is more common ground in the dispute than they had previously imagined/thought possible. … [And] the closer they get to settlement, the harder it will be to spend more time and money on litigation.’

‘Treasury Directions to HMRC to provide targeted tax relief?’

A core function of HMRC is to collect taxes prescribed as ‘due’. HMRC is vested with a managerial discretion, which allows it to take decisions conducive to the collection and management of taxes and credits, which includes engaging in co-operative compliance, and settling disputes, e.g. through mediation. The boundaries of this discretion are unclear. The exercise of discretion raises three questions:
1. ‘Legal’ – What may HMRC do with the discretion?;
2. ‘Normative’ – What ought HMRC do?; and
3. ‘Practical’ – What can HMRC do?
The pervasive managerial discretion which HMRC exercises to collect tax is derived from section 5 of the Commissioners for Revenue and Customs Act 2005 (CRCA 2005), which is supplemented by section 9, which provides that HMRC may do anything which it considers:
(i)          necessary or expedient in connection with the exercise of their functions; or
(ii)        incidental or conducive to the exercise of their functions.
However, s.5 does not specify how HMRC should go about performing this task, and correspondingly it provides legal discretion as to how the task is to be performed. This provision is to be contrasted with statutes that do express how a ‘discretion’ is to be exercised. The fact that a legal discretion arises means that the courts will respect the decisions taken by HMRC pursuant to the ‘discretion’ provided that the limits or boundaries of the ‘discretion’ are not breached. Therefore, provided HMRC does not cross any statutory and judicially developed ‘boundaries’, then it has open to it a range of choices, any one of which will be considered to be lawful if chosen. S.11 of CRCA 2005 also provides, ‘In the exercise of their functions the Commissioners shall comply with any directions of a general nature given to them by the Treasury’, e.g. On 30 April 2020, the Chancellor made a ‘Treasury Direction’ under Section 71 and 76 of the Coronavirus Act. It sets out that HMRC were responsible for the payment and management of amounts to be paid under the Self-Employment Income Support Scheme, as set out in the Schedule to the Direction. Therefore, it would appear that this power can be used to provide grants. Can it also be used to provide ‘targeted’ tax relief to e.g. entrepreneurs and SME’s who meet certain criteria and threshold requirements, in order to encourage and boost growth in the economy? If so, could it also be used as a political tool to avoid/end a strike by public sector workers, by providing temporary tax incentives in lieu of a pay increase?

‘Art Repatriation Claims Against Museums Based Upon The Tort Of Conversion.’

Under English law, a transferee of goods cannot derive a better title than that of the transferor. If the Claimant [‘C’] can establish a continuing title that is better than the party who dispossessed him, any possessor subsequent to the first party, including a statutory museum e.g. the British Museum, is susceptible to the original possessor’s title. Therefore, if the museum [‘M’] acquired cultural property that was stolen or looted, provided the applicable limitation period has not expired, C prima facie has a valid claim against M in conversion. However, this is subject to the ‘Lex Situs’ rule. Thus, where privately owned cultural property was nationalised prior to acquisition by M from a foreign government (who had nationalised it / a successor government), C has no claim, Princess Paley Olga v. Weiz. That is because when M acquired the object(s) the object(s) were within the foreign government’s jurisdiction. In my submission, the logical corollary of the proposition that ‘disposal restrictions apply to items accessioned to a national museum collection’ [P.1], is the proposition that ‘legal restrictions on deaccessioning can only apply to those items insofar as the national museum holds good title’ [P.2]. Therefore, subject to the availability of a Limitation Act defence, if C can show better title than M, the cultural property in question never became part of the museum’s collection. In other words, any statutory restrictions on deaccession would not apply because lack of title precluded the item(s) from ever having legally become part of M‘s collection. Furthermore, to hold otherwise, would effectively displace the lawful owner in a manner akin to seizure by the state, which is a possible infringement of Article 1, First Protocol of the European Convention on Human Rights. Therefore, if the title of M is inferior to that of C, it should be within M’s power to deaccession the item(s) claimed. See also my evolving essay ‘Deaccessioning Art and Cultural Heritage – The Legal and Ethical Framework’ on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk

‘Is there a fatal flaw in the prosecution case against Trump?’

‘Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law. As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct. And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution. The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal. The current Court is divided about when this rule of lenity should apply, and whether it provides much protection at all to criminal defendants. But, if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case. Bragg, in other words, has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations. And that foundation could crumble into dust if the courts reject his legal arguments on a genuinely ambiguous question of law. As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” It’s also possible that Bragg will try to link Trump to a second federal crime allegedly committed by Pecker or his company. As Bragg notes, Pecker’s company “entered into a non-prosecution agreement with the United States Attorney’s Office for the Southern District of New York in connection with AMI’s payoff of Woman 1.” But linking Trump to a second federal crime does not solve the legal problem that could blow up his felony case. That doesn’t mean that Bragg will lose, but it does mean that he will have to convince New York’s courts to adopt the more expansive reading of the felony statute in order to sustain a conviction. If the courts embrace the more narrow reading of the statute, that would mean that Trump can only be charged with a misdemeanor. There’s also one more twist here. The statute of limitations for the felony version of the false records crime is five years, while the statute of limitations for the misdemeanor version is only two years. Trump’s final payment to Cohen occurred in December 2017, which was more than five years ago. That said, New York law sometimes allows the clock to be stopped on these statutes of limitations when the defendant was out of the state, and Trump spent four years living in the White House before relocating to Florida. As a general rule, New York’s own courts are supposed to have the final word on how to interpret New York’s own law. Though the US Supreme Court is the final authority on how to read federal law (including the US Constitution), the highest court in each state is supposed to have the final say on how to interpret that state’s own law. But this case also presents at least two questions that turn on the proper way to read a federal statute or the US Constitution. The first question is whether federal campaign finance law actually criminalizes the $130,000 payment to Stormy Daniels. Former Attorney General Bill Barr — a lawyer who, admittedly, often bent over backward to protect Trump while he was in office — was a staunch critic of this legal theory. And the question of whether Cohen could lawfully be convicted under campaign finance law was never tested because Cohen pleaded guilty and did not fight his conviction. But the question of whether federal law prohibited the payments to Daniels is also at the heart of Bragg’s prosecution. If these payments were not a federal crime, then Trump potentiallycannot be charged with the felony version of the New York law and the case against him must be dismissed. The second federal legal question presented by Bragg’s prosecution is whether the rule of lenity requires courts to select the narrower interpretation of the New York falsified business records law. Many justices have argued that this rule of lenity is implicit in the Constitution’s guarantee that no one shall be denied liberty without “due process” of law. So Trump could ask the Supreme Court to rule that this prosecution is unconstitutional. Will that argument prevail? It’s unclear. The current Court is divided on how broadly to apply this rule of lenity, with Justices Sonia Sotomayor and Neil Gorsuch arguing for a more expansive approach, while Justices Samuel Alito and Brett Kavanaugh push a more pro-prosecution approach. For the moment, Alito and Kavanaugh appear to have the advantage in this fight. The Court said in Ocasio v. United States (2016) that the rule requiring ambiguous criminal statutes to be construed favorably toward the defendant “applies only when a criminal statute contains a ’grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what [the legislature] intended.’” But it’s unclear whether the Court would stick to Ocasio if the alternative were to allow the frontrunner for the Republican Party’s presidential nomination to be hauled off to prison. All of which is a long way of saying that we may need to wait a very long time before the courts determine once and for all whether Trump may be convicted under the felony statutes he is accused of violating — indeed, if the Supreme Court gets involved in this case, we may not get an answer until wellafter the 2024 election. And, of course, even if Bragg does convince the courts that Trump was properly charged with a felony, he will still need to prove that case to a jury beyond a reasonable doubt.’ See: Will Trump be convicted? The glaring legal problem with the Manhattan DA’s case. – Vox

Depending upon the judicial determination of the meaning and scope of the phrase, ‘another crime’, the outcome of this case may have far reaching consequences for other defendants in the future. Not least, because in any event, an asset recovery lawyer in NY can trace a dollar transfer from a bank outside the US e.g. in Lichtenstein made to an offshore account e.g. in Nevis, by using a 1782 subpoena. The reason is that when money is transferred in dollars, even between two Russian banks, it touches a US clearing bank [‘USB’] for a fraction of a second, leaving a permanent record. The HQ’s of the USB’s are in Manhattan. In other words they are under the jurisdiction of the US courts. Therefore, a NY lawyer can subpoena the USB’s to obtain their records, in order to follow the money trail all the way e.g. from Russia, or Lichtenstein, to an offshore bank account. See:
The Expanding Use of 28 USC § 1782 | Seyfarth Shaw LLP

‘Mediation of Probate & Trust Disputes’

See the new ‘Mediation of Probate & Trust Disputes’ page at www.carlislam.co.uk:
– Benefits.
– Tax-efficient efficient settlement of probate and trust disputes.
– Process.
– Mediation Agreement.
– Time-Zone Management.
– Pre-Mediation Zoom/TEAMS Calls.
– Preparation.
– Starting the conversation.
– Offers.
– Executing a Settlement Agreement.
– Tomlin Orders.
– Enforcement of Settlement Agreements.
‘In my experience and opinion, the cut and thrust world of contentious probate and trust litigation has very little to do with abstract notions of justice, and is actually more about perceptions and calculation. So, unless a party needs a court determination to move forward, e.g. as to whether a trust is valid or void, or the court must be involved, i.e. because the case involves children or other vulnerable beneficiaries, then why not do a deal instead? … Mediation is also an opportunity to transform an acrimonious probate dispute into a joint problem-solving exercise, by applying estate and business succession planning principles, to discover and unlock tax efficiency post-death, resulting in the consequential enlargement of the estate or trust fund pie for settlement. … The overwhelming majority of contentious probate/trust disputes never reach trial, because parties agree the structure and terms of a legally robust compromise. Between 92.3 – 94.4% settle, see paragraph 1.3 of my book, the Contentious Probate Handbook.’

‘Litigation costs exceed value of the claim’

In Teasdale v Carter [2023] EWHC 490 Fam, the High Court dismissed the claimant’s proprietary estoppel claim against her husband and daughter over the ownership of a farm outbuilding. Moor J stated: ‘I have to say that this is one of the most regrettable pieces of litigation that I have ever come across. It is not just because this family has become so fractured as a result. The total costs of the litigation at the conclusion of the hearing below were approximately £828,000. The costs of this appeal are £220,000. These figures do not include the costs of the financial remedy proceedings. The house at the heart of the dispute, Cow House, is worth £245,000, after a 20% reduction for an agricultural occupation restriction. When the appeal was opened, it was said that, if I allowed the appeal, the matter would have to be re-heard at further vast expense, as an appeal court clearly could not substitute different findings of fact for those found by the judge below. The final reason that the position is so regrettable is that the parties agreed a way forward on 7 October 2020 which would have obviated the need for all this litigation. Unfortunately, the agreement was subsequently repudiated by the Appellant, on the basis that the First Respondent had enlarged her claim in other respects. The case was then litigated for nine days before HHJ Shelton. It has been heard for two days before me, although that time estimate included only half a day of reading time and absolutely no judgment writing time.’
At the conclusion of a Mediation, it is critical to execute a legally binding settlement agreement that is comprehensive, i.e. which clearly and coherently states all of the material terms of the deal that has been agreed.
As I explain in paragraph 22.13 of my book the ‘Contentious Probate Handbook’ (published by the Law Society in July 2020),
‘[It] is not the normal practice of the Judges or Masters of the Chancery Division to inspect schedules or agreements annexed to Tomlin Orders. The judge who makes the order undertakes no responsibility for the scheduled terms and cannot be taken to have approved them. In other words once a contract has been agreed the parties will be bound by it’s terms. Therefore, until all material terms of settlement have been agreed, and expressed in terms that are capable of legal implementation, it would not be prudent to sign a binding agreement, whether in the form of heads of agreement, or a detailed schedule of terms.’
Consequently, in a one-day Mediation of a Contentious Probate dispute, the drafting of a comprehensive, coherent and legally binding settlement agreement, not infrequently consumes around 30% of the Mediation Day, i.e. between 5.30pm-10pm – which is the time when the participants are most vulnerable to the making of mistakes that subsequently can result in ‘buyer’s remorse’ – because they are exhausted. 


‘Mediation of Cross-Border Commercial Disputes now has teeth!’

The Singapore Convention will come into force in the UK six months after the UK has deposited its instrument of ratification with the UN Headquarters in New York. The UK will champion the Convention internationally to encourage further ratifications: Government response to the Consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018).

Earlier ‘Consultation on the United Nations Convention on International Settlement Agreement Resulting from Mediation’ (02.03.2023) stated:

‘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. …

The Singapore Convention on Mediation aims to provide a harmonised framework to enable parties seeking to enforce a cross-border commercial settlement agreement to apply directly to a Competent Authority (usually a Court) for the enforcement of that agreement. …

The Convention may also present opportunities to establish new relationships in the Indo-Pacific, Middle East and Africa, as well as strengthening existing relationships with parties to the Convention, many of whom are members of the Hague Conference on Private International Law. This would align with the Government’s Integrated Review of 16 March 2021, which outlines its vision for the UK’s role in the world over the next decade and the action that will be taken to 2025. It is noted that several countries mentioned in the Integrated Review are already signatories to the Singapore Convention, including 18 Commonwealth nations with senior Commonwealth leaders continuing to encourage their members to sign the Convention, as well as key UK trading partners USA, China and India. …’

The Consultation Response stated:

‘The Government has concluded that it is the right time for the UK to become a Party to the Singapore Convention on Mediation, as a clear signal to our international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors. 6.2 Mediation is a dispute resolution process which is integral to the UK justice system, and it is estimated that commercial mediation can save businesses around £5.9 billion per year in management time, relationships, productivity, and legal fees with the value of UK mediated cases each year being estimated at approximately £20bn as of February 2023. The Centre for Effective Dispute Resolution (CEDR) noted the emergence of online mediation in its Ninth Mediation Audit in 2021 and predicted that this will serve to increase the overall level of mediation activity, and cross[1]border mediation in particular, 2 in the future. CEDR stated that online mediation is here to stay and that ‘the nature of the field has permanently changed’ in their latest Audit of 1 February 2023. 3 In England & Wales, the Government has also set out its vision to integrate mediation as an essential step within the court process for civil claims. Commercial mediation can support businesses who may be looking for more cost-effective methods of resolving their disputes, outside of the traditional routes of litigation and arbitration, with aspirations of preserving their important and potentially long-standing business relationships by reaching an amicable and mutually agreed resolution. The uniform framework for the effective recognition and enforcement of international mediated settlement agreements, which the Convention provides, will increase confidence to trade across borders and between different legal jurisdictions, by providing a clear and expedited process for resolving commercial disputes through mediation.’
Government response to the Consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) – GOV.UK (www.gov.uk)


CMC Registered Mediator

I am delighted to announce that today I became a CMC Registered Mediator. See: https://lnkd.in/eiaGqWQ2 . I would like to take this opportunity to thank everyone who has helped me along the way to full registration. I specialise in the Mediation of Contentious Probate, Trust, Tax, Art and Cultural Heritage Disputes. For more information please visit www.carlislam.co.uk

To request a copy of any of the following articles posted on the ‘Publications’ page at www.carlislam.co.uk please send an email to carl@ihtbar.com:

– ‘Follow the Yellow Brick Road – Off to Mediation with HMRC – Part 2.’  Published in ‘Taxation’ by Tolley, 05.01.2023.

– ‘Follow the Yellow Brick Road – Off to Mediation with HMRC – Part 1’. Published in ‘Taxation’ by Tolley on 15.12.2022.

– ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 1.’ Published by Oxford University Press in Trusts & Trustees in February 2023 (https://lnkd.in/e-a658_b) . Part 2 will be written in 2023.

– ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning. Taxation (Tolley) 08.03.2022.

– ‘Back to the future’ – Part 1 – Mediation and the tax-efficient settlement of probate disputes. Taxation (Tolley) 01.03.2022.

I am currently working on Part 2 of the article for Trusts & Trustees. I am also writing the 2nd edition of the ‘Contentious Probate Handbook’ for publication by the Law Society in 2024, which contains a detailed chapter about JENE and Mediation. Today I also launched the ‘Mediating Cultural Heritage Disputes’ page (which is a work in progress) at www.diplomaticlawguide.com. This is the subject of an essay I am writing for the Diploma in Art Law course at the Institute of Art & Law in London. The drafts of all three essays are available to view on the ‘Mediation of Art & Cultural heritage Disputes’ page at www.carlislam.co.uk

‘Sleep walking into fascism’

When I was a teenage political science undergraduate at University, I was taught that ‘the more institutions there are the more stable society is’. In order for fascism to displace democracy, institutions must first crumble – which is a slow and gradual process. Mussolini compared accumulating power to ‘plucking a chicken one feather at a time, go slowly and no one notices’. As the late Madeleine Albright, former US Secretary of State, argues in ‘Fascism: A Warning’ (2019), fascism in pre-World War II Europe did not happen all of a sudden. It was incremental. Step-by-step democracy was undermined by eroding liberty. There was no overt overthrow. It can begin with the dehumanising of vulnerable people. In their book, ‘How Democracies Die – What History Reveals About Our Future’ (2018), Professors of Government at Harvard University, Stephens Levitsky & David Ziblatt argue, ‘Democracies may die at the hands not of generals but of elected leaders – presidents or prime ministers who subvert the very process that brought them to power … More often … Democracies erode slowly, in barely visible steps. … Many government efforts to subvert democracy are legal, in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy – making the judiciary more efficient, combating corruption, or cleaning up the electoral process. … People do not immediately realise what is happening. Many continue to believe they are living under a democracy. … Because there is no single moment- no coup, declaration of martial law, or suspension of the constitution -in which the regime obviously crosses the line into dictatorship, nothing may set off society’s alarm bells. Those who denounce government abuse may be dismissed as exaggerating or crying wolf. Democracy’s erosion is, for many, almost imperceptible. … The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy – gradually, subtly, and even legally – to kill it.’ The professors developed a set of 4 behavioural warning signs which can help us to recognise an authoritarian when we see one – ‘we should worry when a politician (1) rejects in words or actions, the democratic rules of the game, (2) denies the legitimacy of opponents, (3) tolerates or encourages violence, or (4) indicates a willingness to curtail the civil liberties of opponents. … A politician who meets even one of these criteria is cause for concern.’ So one day, and without realising what has been happening over a period of years, you may wake up and find that you are living in an autocracy. That is why speaking out is critical to the resilience of democracy and safeguarding the rule of law so that politicians who are not above the law are held to account for their rhetoric and actions which are destructive of the institutions that bind society together in a democracy.


Madeleine Albright on the slow rise of fascism | CNN

‘Mediating probate and trust disputes’ – Published

My article – ‘Mediating probate and trust disputes—process challenges and tools: part 1’ has been published in print in Trusts & Trustees, Volume 29, Issue 1, February 2023, Pages 19-27: https://academic.oup.com/tandt/issue/29/1

I am currently writing part 2 for publication by Oxford University Press. The Abstract for Part 2 states:

‘Although life can only be understood backwards, it must be lived forwards. Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a Mediator (‘M’) is to understand what each P wants, needs, and prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. As discussed in Part 1, the ‘hook’ is the making of an ‘interesting offer’. On paper, a theoretical settlement zone exists somewhere in the gap between:

(i)     the maximum net capital value of each P’s claim; and

(ii)     each P’s BATNA (‘best alternative to a negotiated agreement’) – which in litigation is trial, i.e. the amount below which P will walk away from the table. The challenge in reducing the size of the gap is to make adjustments. …

In this Part, the author discusses the challenges and tools available to a Mediator during the Mediation Day, to help the P’s:

·       overcome psychological barriers to engagement; and

·       develop their own simple or complex solution through engagement with M in private sessions, and with each other in plenary sessions,

in order to agree and sign-off on binding terms of a Settlement Agreement in overall and final settlement of their dispute.

Mediation is the art of knowing how, when and why to ask questions which can bring about a ‘cognitive shift’ in each P’s thinking and behaviour, i.e. a paradigm shift about what they perceive to be at stake and the value of settling. This includes each P’s analysis and evaluation of potential:

(i)         gains;

(ii)        opportunities;

(iii)       risks;

(iv)       costs (including intangibles e.g. health, relationships, reputation); and

(v)        losses (including the time-value of money).

Metaphorically, ‘questions’ are the ‘steering-wheel,’ whereby M can navigate a ‘difficult conversation’ with each P in order to bring closure by helping each P to sort out their dispute for and by themselves. … [T]he author has attempted to set out a Mediator’s Toolkit, i.e. a ‘conceptual framework’ for the structuring of questions by M whilst conducting private sessions with each P, using tools to respond to the challenges that typically arise in the Mediation of a Probate/Trust Dispute.’

I am currently writing the 2nd edition of the ‘Contentious Probate Handbook’ for the Law Society for publication in 2024, which will include an extended chapter on ADR in contentious probate disputes, including JENE and mediation. There is a link to the article on the ‘Publications’ Page at www.carlislam.co.uk