2nd Edition of the ‘Contentious Probate Handbook’

2nd Edition of the ‘Contentious Probate Handbook’ – I have been invited by the Law Society to submit a Book Proposal for a Second edition of the ‘Contentious Probate Handbook – Practice and Precedents’. I am drafting the outline proposal in November 2022 for submission in December. The first edition, published in 2016, sold out. Over the next three months, I am writing an article for Oxford University Press for publication worldwide later this year in Trusts & Trustees about the ‘Mediation of Probate Disputes.’ In the article I will outline a new theory of co-mediation I have designed specifically for Probate, Trust and Fiduciary Duty Disputes in any jurisdiction worldwide, which I call ‘Expert Mediation.’ For more information, please visit the ‘Mediation of Probate & Trust Disputes’ page at www.ihtbar.com. In March 2022 Taxation (Tolley) published my articles about (i) Mediation as the key to a Tax-Efficient Settlement of a Probate and Trust Dispute; and (ii) the use of Mediation as an Estate Planning and Business Succession planning process for global families and their Family Offices worldwide using Zoom, see the ‘Publications’ page at www.ihtbar.com. To request PDF copies of these articles please send an email to carl@ihtbar.com.

Mediation Advocacy insight – Matching negotiating strategy to the objective

Both sides need to be sufficiently prepared about the expectations of the other.

An effective mediation advocate needs to put the client’s interest first, and match the negotiating strategy to the objective by:

·       keeping an open mind;

·       forming an understanding of the process;

·       learning about the procedure;

·       being prepared in all aspects of his/her client’s case;

·       understanding that the legal framework of the dispute may be only one aspect of the parties’ interests;

·       being receptive to solutions which are outside the legal framework of the dispute (i.e. thinking outside the box); and

·       using the Mediator as a tool with which to obtain a benefit for his/her client, rather than seeing him/her as an obstacle.

‘A lawyer who concentrates on legal questions may miss entirely the important commercial interest, not only of his client, but those of the other side that might prompt an advantageous settlement. Equally dangerous is the lawyer who is too sure of himself. He neglects relevant information. He ridicules good suggestions because they have been made by the other side or by the Mediator. He may consider that his client has already invested too much time and money in the conflict to settle in mediation; or he may have given bullish advice before and be fearful of challenging his own client in a private session to re-adjust the unrealistic expectations held by the client which are likely to be exposed in the process as it continues.’
(Professor Andrew Goodman, Bar Council ADR Committee Mediation Advocacy Training Day, 25 May 2013).

To settle at mediation parties in dispute must compromise. To maximise the opportunity for settlement on mutually satisfactory terms, instead of preparing to go to war (i.e. Trial), each party and their Mediation Advocate (i.e. legal representative) must prepare to do a deal. As I explain in paragraph 12.2 of my book the ‘Contentious Trusts Handbook’ published by the Law Society in 2020, ‘The acme of preparation is development of a “settlement range” based upon:

(a)             a realistic legal risk analysis; and

(b)             an accurate commercial analysis,

so that a concrete opening proposal can be made either to your opponent directly, or through the mediator. This requires a white-board/flip-chart for sketching out the parties respective expectations in order to plot and discover your Client’s potential “settlement range” between:

(a)    the maximum net capital value of his claim; and

(b)    his BATNA (‘best alternative to a negotiated agreement’ – which in litigation is proceeding to trial, i.e. the amount below which he will walk away from the table).’

This methodology rests on the observation that it is always better psychologically to be prepared to advance to a known position than to retreat into the unknown.

A good deal has to provide benefits that satisfy each party’s needs. Without that aspiration, why would any party negotiate. Without assurance of benefit why would anyone sign up to a deal?

See also, the ‘Mediation of Probate & Trust Disputes’ page of my website, www.ihtbar.com.

Recent insight & my next article for ‘Trusts & Trustees’

First the ‘lightbulb moment’ i.e. sudden insight – Underlying ‘Practical Ethics’, i.e. the moral case for the return of lost and stolen art, is a ‘Fiduciary Theory of Art.’ This is a relatively unexplored reservoir of ‘legal’ and universally recognised ‘ethical’ duties which exist under both private and public international law. The bridge between the two, is the ancient doctrine of ‘jus cogens’. This argument in a Mediation therefore appears to have both moral force, and a legal foundation in equity. If it does, then under English Law, the argument may have teeth. I am developing ‘Art & Cultural Heritage Law’ as a niche practice area for advisory work about: ‘Art Loans and Contracts’, ‘Duties of Bailees’, ‘Fiduciary Duties of Trustees’, and the I’HT Heritage Property Regime’. For more information please visit the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com. I have also been commissioned by ‘Trusts & Trustees’ (Oxford University Press), to write an in-depth article about the ‘Fiduciary Duties of Trustees of Art & Cultural Heritage Assets’, which I am co-writing with a leading academic at Cambridge University and an eminent Art Historian in London, for publication later this year or early in 2023. Work on the article will begin in August.

War and the Protection of Cultural Heritage

‘War and the Protection of Cultural Heritage’ zoom webinar at IAL’s 6 May at 1pm (see below) – I am attending this talk. My question in advance for the panel is,
‘Could Cultural Heritage diplomacy be a neutral method of mediating a ceasefire to create a network of humanitarian corridors, i.e. by designating certain areas as “Cultural Heritage Safe Zones” and then linking them up?’ 
In any conflict, the humanitarian aim of Cultural Heritage protection always competes with military operations. Since there is no international authority responsible for defining: (i) each country’s cultural property; and (ii) the case of ‘military necessity’/’loss of immunity’ on the ground, is there anything that a State actor engaged in military conflict, or the UN, can do, either unilaterally or multilaterally, to designate cultural sites in a War zone (including cities), as de-militarised ‘Cultural Heritage Safe Zones?’ If these safe zones (which are not policed ‘no-fly’ zones) are linked, I wonder if this could create a matrix of humanitarian corridors, and result in a ceasefire?
I expect that the answer is that while this is theoretically possible, it is not practical, because of the behaviour of Russia’s armed forces, i.e. this would result in confrontation, and escalate the conflict to a potential world and ‘nuclear’ war. Arguably, if Russia invades a NATO member state, uses a chemical weapon in Central Europe, or is the perceived cause of an imminent global evironmental catastrophe, confrontation is inevitable. For some observers, it is therefore not a question of ‘whether’ but of ‘when’.
The language and tools of Cultural Heritage Diplomacy enable a Mediation framework to be jointly developed by those at War by identifying common ground, e.g. a shared cultural heritage (which may include a shared set of religious beliefs and moral values), and the connection between: (i) protecting cultural heritage; and (ii) preserving the environment, e.g. where there is a risk of nuclear contamination because there is a nuclear power plant in the War Zone that could be attacked.
Assuming that one outcome of the War in Ukraine will be reform of the UN Security Council, a subsidiary question is whether it is possible to create a parallel UN council with the power to make decisions about humanitarian intervention in order to prevent e.g. a global environmental, i.e. nuclear catastrophe, by: (i) designating a zone; and (ii) declaring an emergency, in each case by passing an extraordinary UN resolution to be passed by a majority? If it is, then could an international UN ‘environmental’ protection/peace keeping force be sent to the zone to patrol and protect it, e.g. the excluded zone around Chernobyl. If it could, then does this give the UN a legal tool for deploying a military force to a matrix of zones without risking nuclear war through direct confrontation? Note that cultural heritage includes landscape.

Who owns history?

‘The moral case for restitution’ is the title of one of my essays for the Diploma course in Art Law at the Institute of Art & Law in London. Underlying the moral case is a fiduciary theory of art. See the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com. In relation to both antiquities and cultural heritage (which includes landscape), there is a philosophical and legal nexus between:
(i)    the existence of ethical standards; and
(ii)   norms of behaviour.
Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation. My theory is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A that is CP, is a custodian of the object [‘CPO’]. In which case, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’] (including an underwater archaeological site). If P is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty. The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments. There is also a relationship between the human environment, development and culture. The big question is ‘What ethical standards of behaviour do these duties give rise to?’   This is linked to:
(i)      international humanitarian law;
(ii)     the protection and preservation of cultural property; and
(iii)    illicit trafficking of art and antiquities.
The problem of illicit trafficking is further linked to:
(a)        organised crime;
(b)        money-laundering; and
(c)        terrorist financing.
Cultural heritage is of crucial importance to individuals and communities as part of their identity. Because cultural identity is part of human dignity, it is linked to human rights. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, as material and physical heritage needs to be placed in both a historical and cultural context in order to understand its value.
When art becomes cultural heritage, a bridge reveals itself between public international law claims, and private law claims. The bridge is the ancient fiduciary doctrine of Jus Cogens.
Therefore, this theory is about the fundamental values humanity attaches to Art and Cultural Heritage. Those values translate into norms of behaviour that can become building blocks for reaching agreement in a mediation about art and cultural heritage in disputes which involve the competing interests of private parties and states.

Art restitution & Mediation

‘Practical Ethics’, i.e. the moral case for the return of stolen art, has legitimacy and persuasive force as an argument in Mediation because it is linked to moral hazard, i.e. the reputational risk to a museum of possessing stolen art. Consequently, in Art and Cultural Heritage restitution disputes, Mediation is a norm. To an extent, The same applies to Art Authentication disputes i.e. about a ‘Sleeper’. A sleeper is an artwork or antique that has been undervalued and mislabelled due to an expert oversight, and was therefore undersold at auction. The Auction House’s misattribution is printed in the sale catalogue as well as displayed on its website, communicated to potential clients and to those attending the sale. Consequently, the art object is introduced into the public art market under a wrong label. At trial, the court will apply the preponderance of evidence standard to determine liability. The judicial function is not to find an absolute truth but merely a preponderant truth. Judges generally lack the connoisseurship to endorse an expert’s judgment by eye, i.e. they must rule on questions of art authenticity by relying upon expert evidence, without having the requisite skill and knowledge to evaluate and critically assess scientific and opinion evidence. Consequently, in a misattribution dispute, instead of rendering a judgment based upon the experts’ arguments substantiating a specific attribution, a judge may decide that a specific expert is more eminent and established, and consequently that expert’s attribution will prevail. In a breach of duty claim against an auction house, the diligence test applied by English courts is based upon a fiction – the reasonable auctioneer who uses adequate care in the execution of his duties and obligations. This has two drawbacks. 1st – when no expert consensus existed at the time of a wrong attribution. 2nd – the circularity and contingency of scholarship, exposing attributions to divergences amongst scholars and to continuous change. Unless under the terms of settlement agreed at Mediation the parties in dispute agree upon an attribution that can be made public, the problem of disputed attribution does not go away. Therefore, for the parties in dispute, the issue becomes, ‘What is the price of doing a deal?’

I am studying at the Institute of Art & Law in London for a Diploma in Art Law. The titles of my 3 Diploma essays are:

‘The moral case for restitution.’’ 

‘Fiduciary Duties of Trustees of Art & Cultural Heritage Assets’  

‘A Fiduciary Theory of Art.’

See the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com.

My Tutor at IAL’s, Alexander Herman (who was recently appointed Director of the Institute), has written an excellent book about ‘Restitution.’ On Saturday I contributed a review – Google – ‘Herman – Resitution – Amazon books.’ If you want to understand the ethics of restitution, I recommend this book.