‘Expert Mediation’ (a new model of Co-Mediation for Probate & Trust Disputes) – I am developing a new model of Co-Mediation for Probate & Trust disputes (including International Trust and Breach of Fiduciary Duty disputes), which I call ‘Expert Mediation’.
The Co-Mediation process involves:
Adjudicative evaluation by one Co-Mediator (‘A’) with the conclusion about merits being communicated before the start of the Mediation day to: (i) the other Co-Mediator (‘B’), and to each Participant separately (i.e., about the legal and procedural merits of their own case but not that of their opponent).
Facilitative Mediation on the Mediation day being led by Co-Mediator B with Co-Mediator A being available for consultation by Co-Mediator B and each participant in private sessions.
Therefore, the legal and procedural evaluation of each Participant’s case (including litigation and costs risks), is not communicated to their opponent.
I am planning to launch this new Co-Mediation service later in the year.
Where a significant tax issue is associated with what is at stake, then in preparation for settlement the participants also need to prepare for Mediation by obtaining professional tax advice, which is discussed in my forthcoming article for Taxation (Tolley), which will be published in two parts entitled, ‘Back to the Future – Mediation & Estate Planning’.  A process of Expert Mediation could therefore also involve a Chartered Tax Advisor.
To arrange an initial Zoom Consultation to discuss how I can help you, please either send an email to carl@ihtbar.com or contact my Clerk at 1 Essex Court:
Tel: 020 7936 3030 or 020 7832 1010.
Tel out of hours: 07721 866 858.
Email: clerks@1ec.co.uk.
For more information please visit my website, www.ihtbar.com.

As Dr Alon Kaplan TEP, pointed out to me this morning
in a comment on one of my recent posts about the use of Family Investment Companies (‘FIC’s’) in estate planning, ‘I think it would be interesting to consider an arbitration procedure within the articles of associations of the FIC. As you know this issue is problematic in a trust. But as part of a company constitution documents, it should work.’
This is a very smart observation, and see paragraph
12.5 ‘Arbitration’, of my book the ‘Contentious Trusts Handbook’ for a full discussion of the issues and potential solutions. Dr Kaplan’s comment made me think about two more connected issues:
1. Use of an LLP instead of a FIC (which is popular as a tax-efficient wealth planning vehicle in international estate planning e.g. in Lichtenstein), and is highly adaptable to the Sharia compliance needs of Middle Eastern families. See:The ‘Keystone Structure’ | Carl’s Wealth Planning Blog

2. The inclusion in the FIC articles of a ‘two tier’ ADR clause, i.e. for Mediation, followed by Arbitration, or some form of non-judicial ENE, e.g. Adjudication by a panel of TEP’s?
Adjudication is a highly appropriate method of ADR for Probate/Trust disputes, either on its own, or possibly as a first step prior to mediation, i.e. to help parties to gain a more objective and realistic view of their respective positions, and where appropriate to shift from unrealistic positions, e.g. where one or more of the parties has taken an unrealistic and entrenched view of an issue in dispute, or of the case as a whole, and would benefit from an assessment of the particular issue, or case, by an independent expert/specialist practitioner. I would be interested to hear your views and about your experience, as Adjudication is rarely proposed as a form of ADR in domestic probate/trust disputes.

I am currently developing a new form of ADR which I call ‘Expert Mediation’, which involves:

·       Adjudicative evaluation by one Mediator (‘A’) with the conclusion being communicated before the start of the mediation day to: (i) the other Mediator (‘B’), and to each participant separately, about the legal and procedural merits of their own case (but not to their opponent).

·       Facilitative Mediation being led by Mediator B with Mediator A being available for consultation by Mediator B and the participant in the each private session. I will write a further post about this in due course.

Today I launched my new web-page: Zoom Mediation & Estate Planning – Carl Islam

See also:

Probate Disputes – How I can help – Carl Islam

my web-page Mediation of Probate Disputes – Carl Islam, which today appears on page 1 of Google worldwide when using the search words, ‘mediation of probate disputes’;

and: Estate planning using a Family Investment Company – Carl Islam

The current outline of my planned Webinar, to be broadcast later this year is set out below, and is on schedule to be completed and submitted to the provider for approval by the end of this month.

Webinar Title:          ‘Mediation & Estate Planning.’

Type:         One Hour Pre-Recorded Talk.

Presenter:  Carl Islam, Barrister, TEP, Accredited Mediator, and Author.

CPD Points: 1.

Level:        Intermediate/Advanced.

Audience: Solicitors; Barristers; TEP’s; Chartered Tax Advisors; and Family Offices worldwide.

This new webinar explains to private client practitioners how Mediation is an opportunity to transform an acrimonious probate dispute into a joint-problem solving exercise, by applying estate planning principles to discover and unlock tax-efficiency post-death, resulting in the reduction of the chargeable estate for IHT, thereby enlarging the estate/trust fund for settlement and distribution.

Where an ultra-wealthy international business family does not know where to go, and how to start an inter-family discussion about how to put their house in order before a monumental event occurs (i.e., loss of capacity or death of the head of the family), Mediation can also be used as a pro-active life-time estate/business succession planning process, e.g. with the active participation of a Family Office.

What you will learn:

This webinar will cover the following:

• Introduction to the Mediation ‘process’: (i) Terms of the Mediation Agreement; and (ii) the 3 Stages of: Preparation, Planning, and Implementation (i.e., under the terms of the Settlement Agreement).
• Who participates in the process and their roles.
• What planning tools are available to reduce the size of the chargeable estate for IHT, and thereby increase the size of the net estate for distribution, i.e., to expand the ‘pie’ for settlement.
• Why analysis of the tax-efficiency of the Testator’s (‘T’s’) testamentary planning, can reveal common ground for settlement.
• How to expand the ‘pie’ for settlement, by e.g.: (i) restoring T’s available Transferable Nil-Rate Band and Residential Nil-Rate Band; (ii) maximising IHT Agricultural Property Relief and Business Property Relief; and (iii) undertaking retrospective excluded property planning by re-directing legacies.
• Because isolation of these constraints may also the key to a mutually beneficial and tax-efficient distribution of the estate, the process requires a pre-mediation technical analysis of the retrospective IHT planning opportunities by e.g., a capital taxes Chartered Tax Advisor (‘CTA’), i.e., to prepare an Estate Planning Report (‘EPR’).
• The EPR is the participants’ compass in jointly exploring/developing the contours and structure of a holistic plan for the enlargement of the estate/trust fund for settlement and distribution, i.e., by lawfully mitigating IHT, both now, and in the future, e.g., following the death of T’s surviving spouse/civil partner.
• Instead of investing in litigation, family members in dispute can choose, through Mediation, to focus their energies on retrospective estate planning. This process costs each of them nothing, if the fees charged by the CTA are paid out of the estate/trust fund by the executors/trustees.
• Therefore, if family members in dispute are ready and willing to enter into the process, Mediation can open the door to a potential win/win strategy for settling their dispute. The same principle applies to life-time estate/business succession planning, i.e. to avoid a dispute following e.g. T’s death.