My next book is entitled, ‘Dealing With Conflict Constructively’, and I am planning to start work on the book on 1st March 2025.

This will be written as both a course textbook for law undergraduates, and as a handbook about dispute resolution negotiation for legal practitioners.

See the ‘My next book’ page at www.carlislam.co.uk.

This will be supported by material that I will post on my new YouTube Channel, see the ‘My YouTube Channel’ page of my website and the link to the recording of my recent talk about Mediation Advocacy on that page.

During the Institute of Art & Law Training Day today I had the opportunity to speak to a leading UK Law Professor who confirmed that ‘Negotiation’ theory & practice is not taught to Law undergraduates in the UK. In her University, she runs two modules about negotiation for postgraduates. She is from Canada, where apparently ‘negotiation’ forms an integral part of a law undergraduate’s formal education. When she came here she was shocked to find what I have been saying for months on LinkedIn, i.e. that ‘Dispute Resolution Negotiation Theory & Practice’, including ‘Mediation Advocacy’ is not taught to law undergraduates in the UK.

What I also discovered today is the enormous space that exists for specialised training to be provided about the ‘Mediation of Art Disputes’ and ‘Mediation Advocacy’ in these disputes. As far as I am aware nobody is providing this niche training to mediators and mediation advocates. So, there is a huge gap in the market for these courses.

I also had the opportunity to ask a speaker about how in the mediation of a ‘misattribution’ claim, the true value of the disputed artwork can be determined to the satisfaction of the art market, i.e. because the underlying methodology for arriving at and agreeing upon the value is unknown to the market. One speaker acknowledged the problem. Another opined this was not a problem in the primary art market. Mediation is popular in these disputes, as discussed by Anne Laure Bandle in her leading textbook for Art Law practitioners – ‘The Sale of Misattributed Artworks And Antiques At Auction.’ I wonder if the solution is a hybrid process of expert determination and mediation?

An original idea also occurred to me during another excellent talk given by Lauren Gowler. It is this – ‘Can crowdfunding be used to raise funds for mediation in a campaign for the repatriation of ancient art, i.e. Mediation Crowd Funding?’

Is there a precedent?

I recently read ‘Negotiation – Things Corporate Counsel Need to Know but Were Not Taught’, by Michael Leathes. He posits that mediation can be used to facilitate the negotiation of contracts. I vividly recall when this would have been helpful in overcoming deadlock in the negotiation of a power project contract about how sensibly the risk of a latent defect could be shouldered. In my article – ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning. Taxation (Tolley) I also argued for mediation in lifetime planning. So, I asked a speaker whether mediation is used in the US to facilitate expansion of the commercial pie during the negotiation of artist contracts. It isn’t.

You know when speakers are good because the day passes fast. 7 hours today went by in a flash. So, my personal thanks as a delegate to IAL’s and to all of the speakers for their excellent presentations and for allowing me to pose so many questions!

Proprietary Estoppel & Constructive Trust claims are not Contentious Probate claims. These claims are discussed in detail in my book, the ‘Contentious Trusts Handbook’, published by the Law Society in 2020.

A ‘Proprietary estoppel’ claim typically consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It must be satisfied by the minimum award necessary to do justice, which may sometimes lead to no more than a monetary award.

By contrast, a ‘common intention’ constructive trust claim, involves identifying the true beneficial owner or owners, and the size of their beneficial interests.

English law provides no clear and all-embracing theory of constructive trusts.

The boundaries have been left perhaps deliberately vague so as not to restrict the Court by technicalities in deciding what the justice of a particular case might demand.

There are established categories of circumstances in which it has been held that a constructive trust will arise. The categories are not closed. The categories include constructive trusts arising from:

(i)      impugned transactions/payments (without a prior fiduciary relationship);
(ii)     a prior fiduciary relationship; and
(iii)    a prior agreement or understanding.

The constructive trust is not a rigid doctrine. Instead it is deliberately built on a flexible, high level principle of ‘good conscience’.

The current orthodoxy in English law for constructive trusts is whether a proprietary interest exists is not dependent on property per se, but rather when:

(a)  it is unconscionable to deny the beneficial interest of another; or
(b) if there is fraud.

For a ‘common intention’ constructive trust to arise, the parties must have had a ‘common intention’ to share the property beneficially, upon the faith of which the claimant then acts in reliance to his/her detriment.

It is the ‘detrimental reliance’ that makes it ‘unconscionable’ for the defendant landowner to resile from their otherwise unenforceable agreement.

The court has no power to impute an ‘agreement’ or ‘common intention’ to the parties based upon what it considers would have been fair or reasonable.

When the court is considering what the parties actually intended, it looks at the objective phenomena available for consideration, and not into their minds themselves.

The assessment is thus an objective rather than a subjective one.

Pleading these claims in association with a Contentious Probate claim is often a sign of desperation. That is because these cases are highly fact-sensitive, and most fail at trial. Thus, they are perceived to be ‘high costs’ claims of last resort which are pregnant with litigation risk. That is why during the first CMC in such cases, a judge is likely to order a stay for ADR, i.e. Mediation without consent.

The following is an extract from my forthcoming article – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation’, (which I will complete and offer for publication in March 2025):

‘By entering into negotiation, parties in dispute may be able to capitalise on their different needs and priorities in order to discover agreements which expand the estate pie, i.e. by uncovering value-creating trades. Therefore, on one level, resolving an estate dispute through the process of facilitated negotiation/mediated dialogue, involves a ‘distributive’ negotiation about a finite resource, i.e. division of the estate assets, and focuses on each party’s individual interests and needs. On another level, it involves an ‘integrative’ negotiation which aims to create mutual gains and find solutions that meet the needs of each party in dispute [‘P’], by considering their common interests. However, there is a tension between ‘distributive’ and ‘integrative’ negotiation, because how can e.g. P.1 seek to create value without exposing himself to the risk of exploitation by P.2 in the distributive aspects of the negotiation? Resolving the dilemma requires creative joint-problem solving by all involved in the process.

In Mediation, the possibilities are only limited by the imagination of the participants and their Mediation Advocates. Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible.

In the words of the Rolling Stones,
“You can’t always get what you want
 But if you try sometimes, well, you just might find
 You get what you need.”

In the first part of this article, the author provides a set of ideas about how best to prepare as a negotiator, for the settlement of a trust/estate dispute in mediation.’

At 4pm GMT on Thursday 24 October 2024, I presented an online talk to members of the SCMA worldwide, about ‘Mediation Advocacy in Trust & Estate Disputes.’ Click on this link and ‘de-mute’ to watch and listen to the video of my talk on YouTube: https://lnkd.in/ea6D6XnC

YouTube: 

The following is a paragraph I wrote this morning for my next article – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation.’ I am planning to complete the article and submit it to Trusts & Trustees (Oxford University Press) in March 2025. I will then write Part 2 – ‘Negotiation’, later in 2025. The extract from Part 1 is as follows:

‘In a trust/estate dispute value can be squandered because it is never identified. The opportunity for a mutually satisfactory trade exists in what the author calls the ‘Deal-Making Matrix’ (‘DMM’). The DMM is a mind-map (that can be sketched on a whiteboard), which graphically illustrates the dynamic interrelationship between what is of vital commercial interest to each P.

Thereby, what is of lesser strategic importance to each becomes apparent. Where e.g. each P attaches asymmetrical values to the same trust/estate assets, therein lies a potential trade. However, a potential trade cannot be forensically analysed and plotted with any accuracy before a mediated dialogue has commenced. That is because P.1’s pre-mediation analysis of the price he is willing to pay to do a deal can only be based upon untested assumptions about what P.2 is willing to accept.

So, during that early ‘preparation’ stage of the process, P’s calculation of the ‘price’ can only be provisional (i.e. a starting-point), as adjustments will need to be made during the mediated dialogue if it becomes apparent that P.1’s assumptions are erroneous. Thus, P.1 will need to re-calculate the price of doing a deal throughout the process as new information and insights emerge, and likewise, so will P.2.’

See also the Video on YouTube of my online talk to members of the Standing Conference of Mediation Advocates worldwide – ‘Mediation Advocacy in Trust and Estate Disputes’ (24.11.2024): https://lnkd.in/e787e7uF

The recording is now available to view on the ‘My YouTube Channel’ page at www.carlislam.co.uk. Please scroll back to the beginning to see it from the start. The talk is introduced by Andrew Goodman, who is a globally recognised guru and legend in the Mediation Advocacy community.

In 2025, I am planning to launch a new YouTube Channel – ‘Art of Agreement – How to deal with our differences constructively.’

The niche is how to negotiate conflict/dispute settlement.

The target audience is students, academics, and practitioners of negotiation and mediation advocacy (many of whom also practice as mediators) – globally.

Before the launch I will upload this recording as the first hour of content along with new video content that is planned but has not yet been recorded.

Direct link – https://youtu.be/W6_PnTH98b4

The Abstract to my forthcoming article (based upon my recent online talk to members of the SCMA worldwide) – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation’, currently reads:

‘The twin pillars of Mediation Advocacy are:
(i)         ‘effective preparation’; and
(ii)        ‘skilful negotiation’.
In Part 1 of this article I will discuss preparation and in Part 2 – negotiation.
It is a cognitive error to assume that because a legal practitioner is a competent trial advocate, that they must also be a competent mediation advocate, i.e. dispute resolution negotiator. While to an extent advocacy skills transfer to negotiation, the two skill sets are not the same. So, a practitioner may be a brilliant trial advocate but ineffectual as a dispute resolution negotiator.

In the UK, ‘negotiation’ is generally not taught to law undergraduates, nor is it taught to student solicitors and barristers on their vocational courses. As a result of changes made to the Civil Procedure Rules on 1 October 2024, there is likely to be an increase in mediations, whether parties consent or not, and consequently an increased demand for practitioners who are skilled mediation advocates, i.e. negotiators. So, in the opinion of the author, this gap in the education and professional training of lawyers in the UK is likely to change, otherwise market demand for proficient negotiators will exceed supply.’

In Part 2 of the article, I will also discuss ‘Ethics in negotiation’. I have just ordered a copy of ‘What’s Fair: Ethics for Negotiators’ by Carrie Menkel-Meadow, which I will read cover-to-cover in December.

It has just occurred to me that since ‘negotiation’ is generally not taught to law undergraduates, nor to student solicitors and barristers on their vocational courses, that nor is ‘Practical Ethics in negotiation, i.e. doing the right thing.’

So, in developing a future ‘Negotiation’ course for law students at all levels, ‘Ethics in negotiation’ is a key component.

A deep understanding of ethics is vital not only to mediation advocates (whatever the nature of the dispute) but also to mediators.

As I said, I will discuss this in Part 2 of my article which I will write during the first quarter of 2025. I am on schedule to submit a complete draft of Part of the article to the editor of Trusts & Trustees in 21 days time. I have already written 25 pages of manuscript in one week.

2nd ed Contentious Probate Handbook – I am awaiting return of the manuscript from the type-setter for proof-reading. That is the final step prior to publication.

To read the Mediator’s ‘Camel Parable’, Google ‘The Eighteenth Camel.’

By acknowledging the ‘interdependence dynamic’, i.e. that siblings in dispute actually need each other in order to maximise gains by avoiding/minimising losses (Pareto Principle or 80/20 Rule), i.e. because collaboration v. competition can result in the creation of synergy e.g. 2+2 = 6, then what parties in dispute and their mediation advocates need to do in preparing for mediation, is to search for the 18th camel. The same principle applies to the mediation of commercial disputes.

The 18th Camel is a win/win/win outcome, i.e something that is bigger than money.

In a trust/estate dispute there is always an 18th camel, as I discuss in Part 1 of an article I am currently writing and will offer to Trusts & Trustees (Oxford University Press) for publication about ‘Mediation Advocacy in Trust and Estate Disputes.’

All you have to do to find the 18th camel is adopt a constructive mind-set i.e. approach to the settlement of an estate dispute in mediation. That is because searching for the 18th camel can transform competitors into problem-solving partners.

In particular, to find the 18th camel where an estate includes both qualifying agricultural property and heritage assets, see my article published in Taxation in 2023, ‘Downton revisited – Mediating estate disputes involving art and heritage property.’ There is a link on the Publications page at www.carlislam.co.uk.

Today Trump is ahead in Arizona by +1.80, i.e. he is forecast to win 48.7% of the vote v. Harris on 46.9. So, if he wins that state on Tuesday, then on the election math, Harris must win Michigan.

No Democrat has ever won the Presidency without winning this state.

Today she is forecast to win 47.8% (i.e. she is ahead of Trump by 0.80.

However, 5.4% are undecided + there is a margin of error.

Some voter are undecided.

Some may not have openly come out if favour of Trump in Michigan but will in fact end up voting for him.

In March I wrote a blog on the ‘Conflict & Dynamics’ page at
www.diplomaticlawguide.com – ‘Has Trump already won the Presidential election?’

I argued that on the election maths, Biden (i.e. now Harris) can only win if he [i.e. she] takes Michigan.

I added a note at 12.21, 01.03.2024:

‘Biden has picked his side – ‘The US, on 29 February, vetoed a UN Security Council (UNSC) statement that would have condemned Israel for the mass murder of over 100 Palestinian civilians who were awaiting the delivery of humanitarian aid in Gaza City. … Thursday’s veto is the fifth time Washington has blocked a UNSC statement or ceasefire resolution that would hold Israel accountable for the atrocities it has committed in Gaza. According to Riyad Mansour, the Palestinian UN ambassador, 14 of the 15 council members supported the statement advanced by Algeria. At least 112 Palestinians were killed and more than 750 wounded after Israeli troops opened heavy machine gun and artillery fire on thousands waiting for food … in what marked the first delivery of food to northern Gaza in several weeks. “After opening fire, Israeli tanks advanced and ran over many of the dead and injured bodies,” Al Jazeera’s Ismail al-Ghoul reported from the scene. “At about 4:30 in the early morning, trucks started to trickle in. The Israelis just opened random fire on us as if it was a trap. Once we approached the aid trucks, the Israeli tanks and warplanes started firing on us,” a witness at the scene told Al Jazeera.” (thecradle.co).’

If elected Trump has pledged to end the war in Ukraine. Geo-politically, his focus will be on containing China, and not on MENA. He may even: normalise US foreign relations with Russia; close US bases in MENA; and open-up a dialogue with BRICS (including Iran) about economic relations and trade. To his credit, unlike Biden/Harris, he is not a warmonger.

So undecided voters in Michigan, many of whom emigrated to the US from MENA, provided they do not abstain, may vote for Trump.

This is even more likely, if as reported, Trump has clearly stated that he does not want a war with Iran no matter what Netanyahu wants.

For those of you who have forgotten, Netanyahu betrayed Trump in the immediate aftermath of the previous election. Trump has a long memory. I wonder if he has forgiven Netanyahu?

So, keep a close eye on Michigan!

One of the speakers at the online Institution of Art & Law Training day on 16 November, which I am attending, is New York attorney Leila Amineddoleh, who is the founder of Amineddoleh & Associates in New York, and one the world’s leading art restitution lawyers.

If you Google – ‘Foundation’s arguments thwarted in New York case of Nazi-looted Schiele + Institute of Art and Law’, you will see that the author, Stephanie Drawdy who is an American artist and attorney wrote:

‘For the part of its decision holding that laches would not bar the heirs’ assertions of title, the Court was first required to address the question of which law would be applied to the dispute. … The Court … chose to apply New York law, citing the state’s “overwhelming interest in preserving the integrity of its market” (Decision at 16, quoting Reif v. Nagy).

The door was then open to an application of the U.S.’s Holocaust Expropriated Art Recovery (“HEAR”) Act of 2016, which the Court noted “promotes restitution to Holocaust victims” (at 16). A key provision of the HEAR Act sets forth that “defense[s] at law relating to the passage of time” should not be allowed to defeat heirs’ claims (at § 5(a)). …

In finding Zuckerman “most closely aligns” with the foundation’s preferred resolution in Lehman, Justice Odorisi noted the Zuckerman Court’s admonition that each case is dependent on its own facts and in other cases laches might “not impede recovery for claims brought pursuant to the HEAR Act” (at 22, 17). The Lehman Court found the facts before it constituted just such a case. Despite “some similarities” with Zuckerman, the Court found “a notable and significant difference”: the pre-war owners of The Actor (the Leffmans) survived the war while Mayländer and Rieger both perished, leaving their heirs with the almost impossible task of locating and reconstituting their collections (at 22). “As the Court observed in Reif, it would be ‘absurd’ to allow the laches defense to defeat the claims of the Mayländer Heirs and Rieger Heirs” (at 25).’

My Q.’s for Leila are:

(i) What is the juridical/policy/moral rationale underlying the impermissibility of laches operating as a bar to restitution under the HEAR Act?
(ii) Since laches is an equitable principle and not an absolute statutory time bar, are there any circumstances in which she can forsee ‘laches’ (i.e. in a claim based upon the existence of a constructive trust), not being permitted by an English court, to bar a claim for restitution of ancient art, i.e. by acknowledging that the juridical/policy/moral rationale underlying HEAR is a generic principle of art restitution that is of wider application, since it is grounded in universal ethics and morality?