STEP published an online review of my book the ‘Contentious Trusts Handbook – Practice and Precedents’ today. For all reviews of the book, which was published by the Law Society, please visit the ‘Contentious Trusts Handbook’ page at www.ihtbar.com. For reviews of my previous book, the ‘Contentious Probate Handbook’ please visit the ‘Contentious Probate Handbook ‘ page at www.ihtbar.com.
Monthly Archives: November 2021
Using transformative mediation as an estate planning process?
I am currently developing a three hour seminar to present next year by Zoom called, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.
The pie can be expanded by e.g.
(a) using estate/trust funds to pay for professional advice about estate planning and asset-re-structuring, instead of paying for escalating litigation costs;
(b) re-directing testamentary gifts to enhance tax-efficiency (and I am also currently co-writing an article with Stephanie Churchill CTA for Taxation about this); and
(c) re-structuring the holding of estate assets. It recently occurred to me that the application of estate planning principles through a process of transformative mediation can also be used to develop and implement a holistic plan for putting a family’s house in order before a dispute arises.
This might include e.g.
(i) reviewing and re-drafting a family trust deed that is not fit for purpose; and
(ii) altering the share capital structure of a family owned company, and re-drafting the articles and shareholders’ agreement/LLP Members Agreement for succession planning.
Where a business family does not know where to go, and how to start, a facilitated discussion about the joint development of a bespoke plan for:
(i) business succession; and
(ii) estate planning/ asset ownership structuring and fiduciary management, then as a process undertaken before a dispute has arisen, Transformative Mediation may be used to create a safe space in which each key family member can:
(a) voice their individual: needs; concerns; hopes; expectations; and priorities, to a trusted neutral, and disinterested person, who has the soft skills to talk to them, i.e. a mediator; and
(b) to speak through the mediator, to a multi-disciplinary team of professional advisors acting for the family, to jointly develop a bespoke and holistic plan designed to achieve defined objectives, with the flexibility to adapt to changes in circumstances.
See also my blog: ‘We are all in this together!’ | Carl’s Wealth Planning Blog
My article new article ‘Electing between equitable remedies’
My new article ‘Electing between equitable remedies’, has been approved for publication by Oxford University Press for Publication in Trusts & Trustees, and is scheduled for publication in Issue 2 of the current volume (28).
Abstract
Carl Islam explains the operation of the principle of election, and concludes that in a breach of fiduciary duty claim, before an election between equitable remedies must be made by the claimant beneficiary, the judge should first consider the duties and powers of the defendant fiduciary. Because that exercise is inseparable from determination of breach, the author further submits that the exercise should be undertaken by the judge at the same time, i.e. at trial, before making a finding about breach. To request a copy of the article following publication, please send an email to carl@ihtbar.com
‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.
Our distinguished editors Toby Graham (Partner, Head of the Contentious Trusts and Estates group, Farrer & Co., UK) and David Russell QC (barrister, and Deputy Chair of STEP Worlwide 2019 – 2020) lead a superb Editorial Board and team of Country Correspondents, including Lord Peter Millett, Richard Pease, and Nicholas Le Poidevin QC, who are well placed to provide unparalleled international coverage.
The journal is ideal for international trust lawyers working in both private practice and in-house in trust companies; trusts practitioners; and those working in trust companies. It will also be an essential source of reference for academics specializing in trusts; members of the judiciary; members of regulatory bodies; and institutional libraries.’
About | Trusts & Trustees | Oxford Academic (oup.com)
About the author
Carl Islam LLM (Exon)(International Business Law), of Lincoln’s Inn and the Middle Temple, Barrister-at-Law (practising), TEP, SCMA accredited mediation advocate, MSoM, Certified Mediator and Panel Member of the Society of Mediators in London. Dual qualified as a Solicitor of the Supreme Court. Registered Public Access Barrister and authorised by the Bar Standards Board to conduct litigation. Chambers of Ian Mayes QC, First Floor, 1 Essex Court, Temple, London (www.1ec.co.uk). Author of the ‘Contentious Probate Handbook – – Practice and Precedents’ (published by the Law Society in October 2016); the ‘Contentious Trusts Handbook – Practice and Precedents’ (published by the Law Society in July 2020); and of ‘Tax-Efficient Wills Simplified’ (Amazon Kindle book). As a practising Barrister and Mediator, Carl specialises in Contentious Probate, Inheritance Act, and Trust Disputes (including Co-Habitation and Ownership of Property). Carl is also a contributor to Taxation (Tolley), and is developing the outline of a six hour course to present by Zoom from May 2022 entitled, ‘Trust Disputes, Litigation & ADR’.. For more information please visit, www.ihtbar.com. I am currently co-writing an article with Stephanie Churchill CTA for publication by Taxation early next year entitled, ‘The use of DOV’s, s.142 appointments with reading-back under s.144, and disclaimers, in settling a contentious probate dispute.’ I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.
‘We are all in this together!’
Mediation breakthrough tool – Recognition by e.g. executors, trustees, and beneficiaries, that ‘We are all in this together’. Recognition = shared generosity = fairness – which opens the door to principled negotiation, and settlement. The key that opens this door is empathetic listening, which is taught as a voice technique by Patsy Rosenberg to politicians and businessmen.
The ability to nurture this dynamic is a skill that is particularly helpful where participants and their advisors are from different cultures, e.g. when mediating an international family trust dispute.
‘As we look at our own blocks it is also very creative to empathetically notice others. This generous act can actually free our own blocks. The more we allow others to return to their natural voices the more we are empowered. Listening and focusing on others and giving them their rights can also facilitate our own survival. Recently, I have been employed to train overpowering Western leaders to be attentive and sensitive in their communication with Eastern leaders. The hard facts are that an overpowering Western style of backslapping, jovial communication is losing businesses billions of dollars as this style is obnoxious to the East. I train these very successful leaders to observe and listen to their Eastern clients and drop the habits that don’t work. If they don’t they cannot do business in the new and powerful Eastern markets.. Generosity will create their ability to survive. It seems very obvious, but forceful communication never works. Powerful expression does. What can change the world is dialogue and negotiation. … Dialogue requires generosity and generosity requires respect. If in your mind you can consider anyone you are having a dialogue with as an equal respect has a chance to thrive. Both parties have to remain present with each other and give each other the right to speak and be a generous listener. As passion rises in any dialogue, shouting and vocal pushing is a constant threat. No one can listen to shouting or pushing, you can be heard but not received. The vocal tension disturbs the ear and we switch off. It is counter-productive. Speaking quietly but not fully audibly is also very annoying to the other person. They are having to work harder than necessary. Also counter-productive is rushing, mumbling or sounding flat and boring. The key is to think about what helps to change the other person and how you would like to be spoken to. … Listening attentively is an act of survival as is speaking with your rights. … Dialogue is about joint transformation and the sharing of knowledge.’ The Right to Speak’ by Patsy Rosenberg, 2nd edition (2015), pages 106 and 107.
In mediation a claimant can use their voice and be heard. In litigation, except as a witness, they do not have a voice. Paradoxically, while a claimant may have gone to court or threatened to issue proceedings, because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of disinterested lawyers and indifferent judges. Consequently, how participants speak to each other in mediation, either directly, or through their legal representatives or the Mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests.
The skill of allowing a participant in mediation their voice, i.e. the right to be heard, is linked to both ‘how you talk’, and to ’empathetic listening’, because to switch the dynamic from confrontation to collaboration, you must first show that person that: (i) they have been heard; and (ii) you understand their position and the underlying reasons. That is where a Mediator can add value and open a door to dialogue.
I think that these skills are essential when mediating an international family trust dispute, because the participants and their advisors are not only located in different time zones, but culturally may be from different worlds.
See also my blogs:
Carl Islam – Fully Accredited as a Commercial Mediator 28.10.2021 | Carl’s Wealth Planning Blog
Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog
How to expand the pie when settling a will dispute | Carl’s Wealth Planning Blog
I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions. For more information please visit the ‘About Carl’ page at www.ihtbar.com