My Trusts & Trustees In-Depth Article: “Mediating probate and trust disputes—process challenges and tools: part 2” has been published online by Oxford University Press 24.06.2023.’ – The print edition will be published in the Journal worldwide in September. To download the PDF article please visit the ’Publications’ page atwww.carlislam.co.uk.

Abstract: https://academic.oup.com/tandt/advance-article-abstract/doi/10.1093/tandt/ttad038/7206393?utm_source=advanceaccess&utm_campaign=tandt&utm_medium=email

I would like to thank my colleague Jacob Meagher at Cambridge University for his contribution about the Singapore Convention on Mediation. As far as I am aware, Jacob, is the first person to have commentary published about the opportunity the SCM presents, depending upon how politicians enact it.  So, Politicians, Practitioners and Policy Makers – please take note. He writes:

‘What remains to be seen is whether the UK adopts an ‘opt-in or out approach’ (Art 8(1)(b)), whether parties must declare themselves bound by the SCM, or actively depart.. … It is recommended that the UK depart from this provision as the benefits from doing would allow the UK to become a mecca of off-shore and cross-border trust mediation as well as reinforcing our domestic probate, trust, and employment settlements, and doing away with the need to apply for Tomlin orders and thus wasting precious court time.’ 

Jacob recently submitted his PhD at Cambridge and I also would like to take this opportunity to congratulate him on his outstanding contribution to knowledge in the global field of Trust Law.

This is my 6^th article on Mediation published since February 2022. It is will also be my last, until I have completed researching and writing the 2^nd edition of my book the ‘Contentious Probate Handbook’ for the Law Society, which got underway in late 2022, and is on schedule for submission to the publishers in November 2024. If you would like me, or both myself & Jacob (subject to availability) to present a Zoom/TEAMS/in-person talk about mediation or Contentious Probate/Trust litigation, please email carl@ihtbar.com. As a practising Barrister, mediator and author, I also have a research and writing interest in ‘Practical Ethics in the Restitution of Art’  – see the ‘Mediation of Art Disputes’ page at www.carlislam.co.uk

Logically, a catastrophic failure can only be caused by a defect in design, materials, or workmanship. Prior to practising at the Bar, I worked as a company and commercial solicitor and in-house for Rolls-Royce and Alstom (in Paris), structuring and drafting commercial contracts, and negotiating deals in multiple jurisdictions around the world (principally in the Far East, including China, South Korea, Malaysia, and India). Following the award of a major project to Rolls-Royce in the summer of 1990, I became the first solicitor in the history of the company to undertake their multi-disciplinary one-year internal training course for Project Managers of  major Power Projects around the world. As I wrote in an international conference paper which I presented to the Royal Institute of Naval Architects in London in April 1999 – ‘The legal and commercial consequences of performing unspecified design work in ship-conversion projects’:

‘There is no legal definition of design. In principle there is a design element in the whole spectrum of ship-conversion activities ranging from concept design to appearance, functional criteria, detailed design, choice of materials and methods of work. Unspecified design work inevitably results in consequences which are only realised following construction. The combined impact of unspecified design work in aggregate can result in radical changes in the: (1) planned and priced volume of steelwork incorporated into the vessel; (2) specified deadweight tonnage of the vessel; (3) specified speed and fuel consumption of the vessel; (4) specified meta-centric height of the vessel; and (5) stability and trim of the vessel. Consequently, the vessel presented to Owners at re-delivery may be materially non-compliant with the Contract.’

It follows, that where there is a catastrophic failure at sea, the evidence that needs to be obtained, examined with a tooth-comb, and analysed by experts is not only lying on the sea-bed. It is also in the documentary and electronic records of design, construction, materials, testing, and  workmanship (including repair). While this is no longer my field of practice,  in order to investigate and draw reasoned conclusions about the probable cause(s) of a catastrophic failure based upon physical and documentary evidence, the investigators need to obtain all documentary records as a matter of urgency. The article is available to view on the ‘Publications’ page at www.carlislam.co.uk. Otherwise they may never be able to establish the chain of events that resulted in catastrophic failure – which as a forensic process, is akin to project-management in reverse.

In Osbourne v Persons Unknown & Anor [2022] EWHC 1021 (Comm) (10 March 2022) Judge Pelling KC stated:

‘There is clearly going to be an issue at some stage as to whether non-fungible tokens constitute property for the purposes of the law of England and Wales, but I am satisfied on the basis of the submissions made on behalf of the claimant that there is at least a realistically arguable case that such tokens are to be treated as property as a matter of English law. [13] The other factor which is material to this claim is where such tokens are to be treated as being located as at the time when they were lost. … [N]on-fungible tokens are in effect a stream of electrons resulting in a credit item to a crypto account. As such, insofar as they have a physical manifestation at all, that is likely to be where the servers relevant to the account are maintained. However, attempting to litigate issues such as this by reference to a concept as ethereal as that would be difficult or impossible. [14] Unsurprisingly, therefore, in a series of cases relating to crypto currency fraud, it has been consistently held that crypto assets, are to be treated as located at the place where the owner of them is domiciled. There is no reason at any rate at this stage to treat non fungible tokens in any other way, assuming for present purposes as I do that they are to be treated as property as a matter of English law. [15].’

General principles of mediating commercial disputes apply to NFT disputes involving art, e.g:

• What is at stake?

• What is the value of what is at stake?

• What are the litigation & potential costs risks? – including jurisdiction.

• What are the benefits of litigation & trial?

• What is the ‘chance of winning’ multiplied by the ‘net financial gain’ versus the ‘chance of losing’ multiplied by the ‘net financial loss’?

• What are the benefits of doing a deal?– e.g., privacy & confidentiality.

• What is the ‘price of doing a deal’?

• What is the ‘commercial gap’?

• What ‘legal & commercial incentive/leverage’ is there to narrow & close the gap? – e.g., elimination of litigation risk & the time value of money.

A ‘Black Swan’ is the scope for lawful accounting & tax-efficient settlement to accommodate/cushion/mitigate the cost for each side of doing a deal that is ‘enough’. In my article – ‘Back to the future’ – Part 1 – Mediation and the tax-efficient settlement of probate disputes’, Taxation (Tolley) 01.03.2022 , I explain ‘Since this involves a technical analysis that requires the application of specialist knowledge about [each applicable tax regime & of complex/multi-jurisdictional accounting] principles, participants … prior to the mediation day [may separately appoint or] … agree to the joint-appointment of a single qualified [CTA], to provide a [Report] to … scope and explain the potential to expand the [commercial pie] through innovative … tax planning.’ 

As the late Mr Justice Hunt said, in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’,

‘Don’t [embark] on your case like Christopher Columbus, who on his voyage of discovery, didn’t know:

1. where he was going;
2. when he arrived, where he was; and
3. after he left, where he had been!

Know where you are going, and when you have got there sit down. Set out what you want in paragraph 1 of your skeleton argument, “the Claimant’s case is…” Set out your stall, what you are asking for and want the judge to do. Say to yourself – “what am I doing here? What is my case?” Your opening is the route-map for your case containing the clearest sign-posts to point the judge in the right direction.’

There are three modes in which facts can be established:

(i) Direct evidence – that is to say, the facts are proved by an eyewitness;

(ii) Logical deduction from direct evidence;

[and]

(iii) Probable inferences, based on the facts proved by direct evidence or directly deduced from those facts.

Whether or not the burden of proof is discharged depends upon the weight and value which the judge attaches to the various strands of evidence. This involves weighing up the credibility or reliability of the evidence, and ultimately comes down to deciding which version of the relevant matters is more likely to be correct. At trial the judge is concerned with the balance of probabilities rather than certainty.

The aims of cross-examination are:

(i) To destroy the material parts of the evidence-in-chief.

(ii) To weaken the evidence where it cannot be destroyed.

(iii) To elicit new evidence, helpful to the party cross-examining.

(iv) To undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge. The art lies in leading a witness to admit that his evidence was untruthful or mistaken.

If successful, undermining destroys the assumptions on which the reliability of the evidence depends.

‘[Cross-examination] requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and above all, the instinct to discover the weak point in the witness under examination. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness… It is absurd to suppose that any witness who has sworn, positively to a certain set of facts, even if he has advertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. If the cross-examiner allows the witness to suspect from his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair minded spirit, which if the cross-examiner is clever, will soon disclose the weak points in the testimony… By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, while his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself; but it is only with the matter of our cross-examination that we can hope to destroy him.’ (The art of Cross-Examination, by Francis L. Wellman). For more information about advocacy techniques, see the ‘Advocacy’ page at www.carlislam.co.uk

‘When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, and that they are highly resistant to change, in large part because people are generally unaware that they are operating.’ (‘Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?’ by Douglas N. Frenkel & James H. Stark, Harvard Negotiation Law Review [Vol. 21:1]). As they discuss in their article, ‘Perspective-taking’, which is the ability to see things from another person’s point of view, is a vital skill for Mediators because, ‘a person in a neutral role seeking to secure an acceptable resolution between competing parties must attempt to imagine and ideally understand how each participant in a dispute views and experiences it. [That is because], to produce the change needed to resolve a conflict or improve parties’ understanding of each other, information must be exposed that counters the parties’ existing viewpoints and biases. Unlike partisan representation, no successful outcome is possible in a settlement or even transformation-oriented mediation unless the mediator forms accurate impressions of the participants, eliciting highly individuated (and often concealed) information about them and their perspectives. When a desired task outcome depends on such accuracy, research indicates that people will think more deeply about available information, paying increased attention to information that is inconsistent with their initial impressions.’ As I explain in my forthcoming article for Trusts & Trustees (OUP) – ‘Mediating probate and trust disputes – process challenges and tools: part 2’: ‘M needs to discover each P’s state of mind and attitude. Each P will view their case through the lens of their own perspective. To help the P’s climb out of their positional trenches and walk step by step toward the middle of the ground which separates them, M must first see and feel the world as they do. M should start from where each P is currently standing, by sharing their perspective, both intellectually and emotionally.
–     What is the soundtrack going on inside each P’s head?
–     Why does each P feel the way they do?
–     What has prevented the P’s from coming to the table until now?
– Why are the P’s here today and what do they each hope to achieve in the time available?’ The article is in production for publication in print worldwide in September & online in July.