The following is a brief extract from Chapter 5 – ‘Litigation’, of my forthcoming 400 page book – the 2nd Edition of the ‘Contentious Probate Handbook’. I am currently on schedule to complete the drafting of Chapter 5 for submission to my editor in 3 days time. I will then have completed the first draft of around 1/3rd of the book. I am on schedule to complete the book before my Birthday on 22 July:

5.3.5 Evidence

The general rules of evidence apply in probate claims subject to special rules about:
       (a)      admissibility; and
       (b)      the evidence required to prove particular matters, i.e. due execution, revocation, testamentary capacity, knowledge and approval, undue influence and fraud. …

In a contentious probate case, the guiding principle is that a witness should give evidence in his or her own words on issues in the case in relation to which his evidence is likely to assist the court, and nothing else. See also paragrapah 5.8.6 – ‘Reality-Testing’, below. …

‘Recent authorities about how a judge should approach the finding of a fact are: The statement of Legatt J (as he then was) in the commercial case of Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm) … that ‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, the place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’ has attracted criticism: see CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] – [10] approved by the Court of Appeal in Kogan V Martin [2019] EWCA Civ 1645. In the latter case, Floyd LJ stated at [88] that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’ …
(Tristram And Coote’s Propbate Practice. Thirty-Second Edition (2020), by PR D’Costa, P Teverson and T Synak, Lexis Nexis, Paragrpah 39.18, Footnote 3). …

Where, as is often the case, facts relating to the making and execution of a will are solely in the knowledge of one party, e.g. where a testator drafted a home-made will under the terms of which he gifted assets to a person who was living with him, then the making of an application under CPR Part 18 for further information may be necessary. In which case, the author would argue that it is appropriate to make an interim application at an early stage in the proceedings, i.e. at or before the first CMC.

Part 7 probate claims are inherently fact-sensitive, often culminating in a decision being made about which of the parties’ conflicting accounts is more probable than not. … The credibility of the witnesses of fact and consequently the weight attached by the judge to their evidence, will often be a determinative factor in reaching an overall conclusion prior to judgment.

Well at least that is what it says on the sign in my office!

Advocacy is about ‘persuasion’ in the non-Godfather Part 1 sense of the term. That takes patience, preparation and skill. So does ‘persuasion’ in Mediation Advocacy. However, this takes the form of ‘negotiation’ – which involves a completely different approach and skill set – you are not trying to win. You are trying to do a deal. So, I have included the following recommended reading list at the end of the ADR Chapter in the 2nd Edition of the Contentious Probate Handbook, which I am currently writing for the Law Society of England and Wales:

10.5.3       Further reading
In order to develop your mediation advocacy skills, the author recommends the following publications:

‘Thinking in Bets – Making Smarter Decisions When You Don’t Have All The Facts’, by Annie Duke (2018), Portfolio/Penguin.

‘Negotiating the Nonnegotiable – How To Resolve Your Most Emotionally Charged Conflicts’, by Daniel Shapiro (2017) Penguin Books.

‘Negotiating the Impossible – How To Break Deadlocks And Resolve Ugly Conflicts (Without Money or Muscle), by Deepak Malhotra (2016), Berrett-Koehler Publishers, Inc.

‘Never Split The Difference – Negotiating as if your life depended on it,’ by Chris Voss (2016), rh Business Books.

‘Negotiation Genius – How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond’, by Deepak Malhotra and Max H Bazerman of Harvard Business School (2008), Bantam Books.

‘Building Agreement – Using Emotions As You Negotiate’, by Roger Fisher and Daniel Shapiro (2007), rh Business Books.

‘Thinking fast and slow’ by Nobel Laureate in Economics – Daniel Kahneman (2011), Allen Lane.

‘Beyond Machiavelli – Tools For Coping With Conflict’, by Roger Fisher, Elizabeth Kopelman, and Andrea Kupfer Schneider (1996), Penguin books.

I will be discussing ‘negotiation’ mindset and skills in a talk that will be broadcast worldwide at 4pm GMT on Thursday 24 October 2024, in a one hour online seminar for the SCMA.

Prior to entering private practice, I worked in-house for Rolls-Royce and Alstom (in Paris) drafting, and negotiating deals in multiple jurisdictions around the world (principally in the Far East, including China, Japan, South Korea, Malaysia, and India), and resolving international commercial disputes. As a Mediation Advocate, I approach doing a deal in settlement of a commercial dispute with the benefit of that commercial experience and can apply a degree of ‘nous’. As a Mediator, I can also use my ‘commercial’ antennae to help parties re-frame their dispute as an opportunity.

For anybody who is interested in the study, teaching and practice of ‘International Dispute Settlement’, at the foot of the ‘International Dispute Settlement’ page at www.carlislam.co.uk, I have also set out a Research Bibliography for my next book, ‘International Dispute Settlement’ – which I will start to write in 2025.

My copy of ‘Beyond Machiavelli – Tools For Coping With Conflict’ was handed to me and signed by the late Professor Roger Fisher at the end of a two hour one-on-one conversation with him, in his study at Harvard Law School, during a short research visit as a Scholar from King’s College London to Harvard University in April 2002. His parting words to me were:

‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’

As an SCMA Accredited Mediation Advocate and CMC Registered Mediator, I abide by the wisdom of Professor Fisher. This is how you achieve a ‘break-through’ moment in any negotiation/Mediation. I commend his books to all students and practitioners of Mediation and International Dispute Settlement.

For anybody interested in the study, teaching and practice of ‘International Dispute Resolution’, I have set out my current Research Bibliography (which I will periodically update), at the foot of the ‘International Dispute Resolution’ page at www.carlislam.co.uk.

This includes a number of titles about Cultural Property disputes and international dispute settlement, which I read while studying for the Diploma in Art Law course at the Institute of Art & Law between 2020 and 2023.

For my course essay ‘Mediation of Cultural Property Disputes’, and the following supplementary Tables:
– ‘Ethical Principles’;
– ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution’; and
– ‘Tools & Precedents’,
please visit the ‘Cultural Property Claims & Duties of Museum Trustees’ page at www.carlislam.co.uk.