Mediation of Islamic Family Trust Disputes

I briefly discuss the primary advantage of Mediation over litigation in relation to these disputes in a wider article I am writing for Trusts & Trustees (OUP) – ‘Mediating Probate Trust & Tax Disputes –Challenges & Tools’, which I am on schedule to complete in August. The following is an extract:
‘Where terms of an Islamic family trust were drafted following consultation with Sharia Scholars who pronounced upon conformity with Islamic law, and the deed contains a valid and applicable English governing law clause (‘GLC’), the GLC Engages:
(i)         An ocean on potentially applicable equitable principles developed under English Law, except to the extent that any right, duty or power has been modified or lawfully excluded under the express terms of the trust, as drafted.
(ii)        Fiduciary principles under Islamic law.
Depending upon the knowledge and skill of the draftsman, this may have resulted in the creation of a lacunae between:
(a)        an applicable principle of equity under English law; and
(b)        an unstated ethical principle under Islamic law.
Islamic Law is not a unified system of law. Furthermore, the doctrinal foundations of fiduciary theory in Islamic law suffer from a paucity of analysis. As Professor Mohammad Fadel concludes in chapter 28 of the Oxford Handbook of Fiduciary Law (2019) (‘Fiduciary principles in classical Islamic law systems’), at page 543:
‘[There is] a vast body of rules in classical Islamic law that were reflective of fiduciary principles. … [An] Islamic fiduciary, above all, is supposed to be motivated by a genuine sense of moral duty and is always aware that his or her discharge of that duty is subject to divine supervision. If fiduciary duties arise as a solution to incomplete contracting, it is a unique kind of contract insofar as the fiduciary is prevented from securing his own interests. It is rather an undertaking to do one’s best in furtherance of the interests of another. This altruistic dimension of fiduciary duties in Islamic law is ultimately its most crucial feature, distinguishing it from other legal relationships.’
Therefore if the family trust dispute proceeds to litigation, a court which has jurisdiction, becomes in effect a final arbiter of the meaning and enforcement of the rights of the beneficiaries, and the duties and powers of the trustee (and of any Protector) under the terms of the Islamic Trust deed. The court will make its decision based upon the expert evidence presented about Islamic Law. Since its decision is likely to depend upon the eminence of the expert whose evidence the court prefers, the outcome of the litigation:
(i)         is uncertain; and
(ii)        may not conform with the Islamic ethics of the deceased settlor [‘S’].
Through Mediation, the participants can instead discuss and explore S’s ethics, and agree bespoke ‘ethical’ terms of settlement in a form which a court has no power to impose under English Law.’

Mediation of Probate Trust & Tax Disputes – Challenges & Tools

‘Mediation of Probate Trust & Tax Disputes – Challenges & Tools’ – This is the title of an article I am currently writing which I am aiming to submit to Trusts & Trustees (OUP) in August, for publication later this year.
Introduction – ‘In essence, mediation is a forward-looking conversation. The role of a mediator (‘M’) is to manage the process and ensure that it is conducted in accordance with the terms of the Mediation Agreement. M must also:
·       create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the commercial problem that divides them; and
·       empower adversarial parties to a dispute to become participants [‘P‘s’] in a creative, bespoke and collaborative problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their respective position statements and agreed bundle of documents; legal merits; litigation risks; the time value of money; and the benefits (including tax benefits) of ‘doing a deal’ now, instead of incurring further legal costs by resuming trench warfare and going to trial.
This requires counter-intuitive thinking and behaviour and can result in a ‘paradigm shift’ which results in a creative solution that a court cannot impose. It therefore also requires a ‘commercial’ rather than a ‘forensic’ legal or procedural mind-set, and some imagination. The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what a participant’s objectives, needs and priorities are, and why.
While it is not the function of M to speak truth to power, M can facilitate the re-framing of a dispute as an opportunity, by enabling each P think about what is important to them, so that the P‘s can agree upon a ‘methodology’ i.e. a ‘road map’ for convergence and consensus. This requires a ‘paradigm shift’, i.e. acceptance by each P that there is a better way of resolving their dispute than going to trial. The tools that M can use to engineer a sudden outbreak of common sense are the subject of this article. If you have any ideas or comments about mediation that you would like to contribute please email