As a practising Barrister I specialise in Will, Inheritance, Probate, and Trust disputes.

I passed the Mediator training course provided by the Bar Council 30.07.2021, with a score of 96% on the exam. In order to become a member of the Society of Mediators (i.e. as a panel member), then within 12 months, I need to complete three observations of a Zoom mediation involving any mediator. To cut my teeth and gain flying hours, from October, I will volunteer for internet County Court Mediations in relation to: will; probate; trust; property; business; and contract disputes.

Until I have completed all of my observations I can hold myself out as a qualified non-panel Mediator. My ambition is to become a panel member of the Society of Mediators in London, which I am working towards. Completing the course is only the first step in a long journey to develop skills as a mediator – learning first by watching and then by doing, and I will not be doing any mediations until I have become a panel member with the Society of Mediators.

As a a matter of policy and choice, I will only act as a Mediator if the value of a dispute is within the limit of my PI cover which I increased in 2021. My target market is disputes below £2 million.

Anecdotally, I had the great privilege of meeting with the late Professor Roger Fisher for two hours in his study at Harvard Law School during an academic visit from King’s College London in 2002, and his parting advice was,

‘Appreciate their point of view:

• understand it – it’s very important to appreciate the way they see it,
• even if you don’t agree, say that it merits serious consideration, don’t say that they are wrong.

Appreciate their self-esteem.

Acknowledge that the other person has been heard.

Be prepared to argue their case better than they can before you answer it.’

By the end of the Bar Council Mediator Training Course, I understood the wisdom that Professor Fisher (co-author of ‘Getting to Yes’ and a founding Father of principled negotiation) had imparted to me.

The secret or acme of mediation is authenticity, empathy, and active listening (without making matters worse!), which develops trust and enables the Mediator to create a safe space into which the participants feel empowered to enter and start a conversation that can lead to a solution of their own design and making, i.e. to a ‘deal’ that they own. This requires counter-intuitive thinking and behaviour, and is a lot harder to actually do than you might think.

The art and metier of Facilitative Mediation can be used to solve almost any kind of dispute, and does not require any legal, economic, business, social, political, or diplomatic knowledge and subject-matter expertise/experience by the Mediator. What it requires is skill in managing a process.

At the end of our meeting Professor Fisher went up to his bookshelf and handed me a copy of his book ‘Beyond Machiavelli’ which he inscribed, ‘To Carl – Another set of ideas!’

It is one of my greatest treasures.

Meanwhile, I would like to take this opportunity to thank Jonathan Dingle and all of his colleagues at the Faculty for delivering the challenging, exhausting and brilliant course they put us all through this week, which involved 14 hour work a day. I can now sleep for a few hours!

While my primary focus is on mediation of will, inheritance, probate, and trust disputes, after I have completed my Art Law Diploma (which I am aiming to complete by July 2022), I also plan to develop the ‘facilitative’ Mediation of Art and Cultural Heritage Disputes as a niche practice area, and to write and talk about the subject.

Mediation is the norm in both Art and Cultural Heritage Disputes, see the ‘Mediation of Art & Cultural Heritage Disputes’ page of my website:

Mediation of Art & Cultural Heritage Disputes – Carl Islam

As Judith B. Prowda observes in her leading text book, ‘Visual Art And The Law’ (2013) at page 240,

‘Creative solutions may be obtained in mediation by exploring each party’s interests, including non-monetary concerns. Mediation may result in a more satisfying outcome for the parties than a court decision, which is limited to the matter before it, not in enabling options for the parties.’

For more information about my future Mediation services please visit: www.carlislam.co.uk

See also my blogs:

The English court can order mediation where a party does not consent – The English court can order mediation where a party does not consent | Carl’s Wealth Planning Blog

Civil litigants in England and Wales can lawfully be compelled to use alternative dispute resolution (ADR), according to a new report by the Civil Justice Council (CJC).

Mandatory (alternative) dispute resolution is lawful and should be encouraged: Mandatory (alternative) dispute resolution is lawful and should be encouraged | Courts and Tribunals Judiciary

See also:

Compulsory ADR: Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)

A move towards compulsory ADR? (newlawjournal.co.uk)

“Parties should be encouraged to accept mediation, for example by imposing sanctions on those who refuse to enter into it, the report advocates. It suggests sanctions could be ‘to prevent the claim or defence continuing, either by making the commencement of proceedings conditional on entering ADR, or empowering the court to strike out a claim/defence if a party fails to comply with a compulsory ADR order at a later stage in the proceedings.’ It adds that any strike-out could be set aside if there was a valid reason for non-compliance.

Evaluative appraisals in the form of early neutral evaluations and financial dispute resolution (FDR) hearings in the Family Court would be candidates for compulsory mediation, the report indicates. FDR is already a standard and compulsory part of the procedure to be followed when a party makes an application for a financial remedy under Part 9 of the Family Procedure Rules 2010, and usually takes place following the first directions hearing. Both parties must attend the FDR unless the court orders otherwise.

‘ADR should no longer be viewed as an “alternative” but as an integral part of the dispute resolution process,’ commented Vos. ‘That process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.’”

Extract from STEP Industry News 15.07.2021.

Therefore, if an application is made for JENE to be followed by Chancery FDR/Mediation, the court can grant the application without the consent of an opposing party. Since ADR is to be encouraged, a party should not be penalised for making an application if the application has merit.

This is timely, as I am training to qualify as a Civil Mediator in 9 days time.

For more information please visit ‘Will Trust & Probate Disputes’ – https://newsite.carlislam.co.uk/contentious-probate

and,

www.ihtbar.com – ‘Mediation of Art & Cultural heritage Disputes’

See also my article published in Trusts & Trustees – ‘Judicial ENE – The new normal’ on the publications page at www.ihtbar.com

In the Article I argued: 

‘By analogy, following Lomax (supra) can the court order a Chancery FDR without consent, i.e. after imposing a JENE? Arguably, yes, because:

i. CPR, r.3.1(2)(m) does not expressly exclude FDR—what it does is to illustrate the application of the underlying principle by reference to ‘Early Neutral Evaluation’;

ii. the issue that was before Mrs Justice Parker in the

High Court in Lomax,6 was whether the court had the power to order either ‘an Early Neutral Evaluation Hearing (‘ENE’) or Financial Dispute Resolution Hearing (and by extension give directions for it) in the absence of consent pursuant to amended Civil Procedure Rule (CPR) 3.1(2)(m.)’;

iii. at paragraph 111 of her judgment, Mrs Justice Parker concluded, ‘on the finest of fine balances’ that she could not order either, and that this conclusion ‘may well be wrong, and overly cautious’;

iv. Mrs Justice Parker further observed that: ‘FDR cannot be considered just a sub-species of ENE’ (paragraph 118); and ‘the current Rules are insufficiently precise in their formulation for me either to conclude, or be confident that the Rule makers intended . . . that the term ENE in the amended Rule is intended to govern FDR as well’ (paragraph 119);

v. the learned judge urged, ‘the Rules committee (a) to clarify whether ENE is to be considered compulsory and (b) to give consideration to providing a clear route to compulsory FDR in appropriate civil proceedings a prime example in my view being Inheritance Act litigation. The arguments for the court having power to do so are strong and the experience in the Family Division of court-controlled intervention presents a very favourable picture’;

vi. in Lomax (supra), Lord Justice Moylan stated:

Looking at the issue more generally, as I have already described, the great value of a judge providing parties with an early neutral evaluation in a case has been very well demonstrated in financial remedy cases. Further, the benefits referred to above have been demonstrated not only in cases where the parties are willing to seek to resolve their dispute by agreement and are, therefore, willing to engage in an FDR. In my experience and that, I would suggest, of every other judge who has been involved in financial remedy cases, the benefits have also been demonstrated frequently in cases in which the parties are resistant or even hostile to the suggestion that their dispute might be resolved by agreement and equally resistant to the listing of an FDR. As Norris J said in Bradley v Heslin [2014] EWHC 3267 (Ch):

‘24. I think it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves.’

(Paragraph 29) . . .

If the intention had been to require the parties to consent, it would have been very easy to make this clear by expressly providing for this. In my view, the absence of any such express requirement is a powerful indication that consent is not required (Paragraph 30); and vii. while the comments made by Lord Justice Moylan in paragraphs 14 and 29 of his judgment, were made obiter, in paragraph 32 of his judgment, the learned judge found, ‘In conclusion, I see no reason to imply into subparagraph (m) any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties is required’, therefore his conclusion about the meaning and scope of CPR, r.3.1(2)(m) is an integral part of the ratio in Lomax, and by analogy applies to FDR.

The stage is therefore set, for either a test case, or the Rules committee to clarify whether FDR (including Chancery FDR) can be ordered without consent.

The author argues that on a wide interpretation of CPR, r.3.1(2)(m), and subject to compliance with any other procedural requirement, for example, where the interests of minor and unborn beneficiaries are involved, that the court has the power to make any direction ‘for the purpose of managing the case and furthering the overriding objective’ that it sees fit to order.’