‘2nd Ed Contentious Probate Handbook – Update (22.07.2024)’

Many thanks to Dr Hugh Series of the Faculty of Law at Oxford University – https://lnkd.in/eYGXAUNN, for contributing a Practice Note & Chronological Tables about ‘Mental Disorders.’

This will appear as an Appendix to the 2nd Ed of the book.

Both myself & my editor at the Law Society recieved this 22.07.2024 – which was my Birthday! So the timing could not have been better.

In the past, as defence Counsel, I have had the pleasure of working on cases with Dr Series, and rate him as being the foremost practising expert in this field in the UK today.

Although this subject is discussed in paras 4-026 to 4-040 of the 19th ed of Theobald On Wills (2021), Hugh is the first NHS Hospital Consultant & old age psychiatrist that I am aware of, to write about this since the 4th ed of Assessment of Mental Capacity – A Practical Guide for Doctors and Lawyers was jointly published by the BMA & Law Society in 2015.

So, any and every legal practitioner in this field who is worth their salt, should read what he has written.

Ellen Radley is a world class expert on forensic analysis of handwriting & forgery. She has contributed a Practice Note about ‘Forensic examination of handwriting and questioned documents.’

We had a long conversation before she wrote this, about how judges & barristers approach the analysis of expert forensic evidence in fraud cases
& corresponded about this. Her contribution contains fresh & valuable insights for judges & barristers about rigour in the analysis of expert forensic
evidence.

If there is a book launch both Ellen & Hugh will be invited to attend as honoured guests, and if you are on the list of solicitors & judges invited to attend you will be able to meet them in person.

Once again many thanks to both Ellen & Hugh for making these invaluable contributions to knowledge in our highly specialised field.

‘Negotiation tactics – “Host” & “Guest” – Is the Cat planning to eat the Mouse?’

The ‘Host’ is the negotiator (‘HN’) who asks the questions.
The ‘Guest’ is the negotiator (‘GN’) who answers them.

These roles have nothing to do with the venue.

By asking questions, HN can steer the conversation toward his own interests (i.e. the ‘red-line’ terms of his pre-determined ‘settlement range’ [‘PSR’).
If HN listens to GN & ask questions, then GN will usually take the bait & offer more.

So:

– HN enquires,
– GN offers.

Thereby, HN controls the agenda.

HN is the Cat.
GN is the Mouse.

Paradoxically, GN (the Mouse) thinks that he is leading (i.e. that he is the Cat & HN the mouse). That is because GN is doing all of the talking.

In reality the opposite is true.

That is because the person i.e. HN, who is controlling the conversation & steering it in the direction of his own PSR is the negotiator who is asking the questions & listening.

What is actually happening, is that with each question being asked & answered, GN is being irresistibly drawn into HN’s PSR & further away from his own PSR.

Now, it is not smart for a mouse to sit next to a cat & of course in Mediation the negotiators do not have to meet in person or face to face by Zoom.

As a mediation advocate i.e. negotiator, your natural impulse is to take the lead by assuming the role of ‘Host’.

You are the Cat & your opponent is the Mouse.

In order to do this through a mediator you will prepare to invite the Mediator to ask your opponent questions thereby placing your hands & not those of you opponent on the steering wheel from the outset.

You take control of the mediation car & never allow your opponent to get into the driving seat.

Sorry to mix my metaphors!

So, in the mediation of a probate dispute, the Cat is HN. Not the Mediator.

If you appoint a Mediator who is not an experienced negotiator & does not know about the ‘Host’ & ‘Guest’ dynamic & if the Mediator then does HN’s bidding, he becomes a servant of the Cat.

So, a competent Mediator will always expose the game & thereby neutralise the ‘Cat & Mouse’ i.e. ‘Host’ v. ‘Guest’ manipulation dynamic, by asking the Cat, i.e. HN – ‘how does asking that question progress the resolution of this dispute?’

The answer to this question will reveal whether the Cat is planning to eat the mouse.

The Mediator can then use his skill to facilitate a paradigm shift, whereby the Cat & Mouse are transformed into partners who use their time & energy to focus upon: (i) preservation of the ‘cream & the cheese’ i.e. the estate assets; & (ii) allocation of the ‘cream & the cheese’ between them. This requires parties in dispute to work with the Mediator, by 1st exploring what each party values, needs & prioritises. This may not be asymmetrical, because the Cat wants the cream & the mouse wants the cheese. It may also reveal the existence of common ground, i.e. instead of running around they can both enjoy their cream & cheese in peace.

‘Mediation advocacy skills in trust & estate disputes – There is no such thing as a trivial detail or small point.’


The smallest detail e.g. how your opponent actually speaks & appears in person v. on paper, can reveal more about their needs, priorities, and constraints, than what is in a position statement & bundle. So, in mediation – focus on the person & not the paperwork. Do not let the smallest of details pass you by. This of course is linked to the skill of active listening, emotional intelligence & instinct. It cannot be taught, but it can be practised.

The title of my next book is – ‘Art Cultural Heritage & Music Law’.

My aim is to write a practical handbook about the law & practice of Art Cultural Heritage & Music business transactions & dispute resolution.

The ‘Art & Cultural Heritage Law Research Bibliography’ appears on the ‘Art & Cultural Heritage Law’ page at www.carlislam.co.uk.

The Music Law ‘Research Bibliography’ appears on the ‘Music Law’ page at www.carlislam.co.uk.

I was planning to get this new writing project underway in March 2025. However, I am currently on schedule to start work on the book in November 2024.

‘Mediation Advocacy in Trust & Estate Disputes’

I have started to pull together the threads of my reading about ‘Negotiation’ & to place them in the context of Mediation Advocacy in a trust/estate dispute.

I have also started to draft the Speaking Notes for my online talk to the SCMA worldwide in October about ‘Mediation Advocacy in Trust & Estate Disputes’.

This is an extract from the ‘Introduction’:

Introduction
·       The structure of this talk mirrors the structure of ‘facilitated’ negotiation
during the mediation of a trust/estate dispute – it has:
–     A beginning.
–     A middle.
&
–     An end.
1. Beginning – What is Mediation Advocacy?
2. Middle – Skills?
3. End – Strategies & Traps for the unwary?

The 1st point I will make is that ‘Mediation Advocacy’ = ‘Facilitated Negotiation’. In other words it is not the same as one-dimensional commercial negotiation.

If a negotiator (‘N’), knows how to work ‘with’ instead of ‘against’ the Mediator [‘M’], that opens the door to another dimension – a ‘deal-making’ dimension [‘DMD’].

The DMD is not the same as N’s ‘Deal-Making Zone’ [‘DMZ’].

So, it is a ‘rookie’ mistake to assume that you can somehow get M on your side & then use M to force your opponent into your DMZ by legally ‘bashing them’ on the head’ on your behalf.

M is not a ‘post-box’ & there is always ‘risk’ in any litigation for both parties – not least the Judge you both get.

Effective Mediation is also a more subtle & sophisticated process. That is because your opponent must want to enter into your DMZ – which at some point may overlap with their DMZ.

So, you don’t ‘force’ – instead you ‘attract’, i.e. you ‘draw’ your opponent in.

Thus, to be effective N must be skilled in working ‘with’, rather than ‘through’ or ‘against’ M.

In order to develop this skill in the context of a trust/estate dispute – N
must 1st put himself/herself in the shoes of M. In other words in order to
prepare as a negotiator, a negotiator must 1st prepare as if he/she were the
Mediator.

From October, I should be fully available to act as a Mediator & Negotiator. If you would like to meet me at your offices in London, Leicester, Birmingham, Leeds or Newcastle, or for me to present a short lunchtime talk to your firm in person or by Zoom about ‘Mediation & Negotiation skills’, please email carl@ihtbar.com.

‘Negotiation skills – “Bait the hook to suit the fish!” …’ –

Over the next 3 weeks I am completing my reading of books about negotiation which I have collected over the last 4 years. 4 more to go – books I mean!

I also have a handbook of my own, that I wrote & which accompanied me overseas when I was an itinerant in-house negotiator working for Rolls Royce & Alstom in Paris.

I glance at this from time to time & today was reminded of the
following insight which I noted down in the handbook in 1996 –

‘The only way to get someone to do something is to make the other person want to do it.

So:

1. See things from your opponent’s angle.
2. Understand their point of view.
3. Ask yourself – ‘How can I make this person want to enter my ‘deal-making zone?’

In other words, ‘bait the hook to suit the fish!’

This requires rigorous preparation, charm, subtlety, patience, trust & flexibility.

What you are in effect doing, is manipulating your opponent without him realising it, i.e. because he thinks your proposal was his idea.

So, the 1st key skill in mediation advocacy is ‘listening’!

I am going offline at the end of this week for 2 months to complete work on the 2nd ed of the Contentious Probate Handbook which is currently in a 6-8 period of editorial review. I am also preparing notes for a talk I am giving online at 4pm GMT on Thursday 24 October 2024 to the SCMA worldwide about ‘Mediation Advocacy in Trust & Estate Disputes.’

Time permitting in July & August I will post further short extracts from my handwritten ‘Negotiation Handbook’.

I like to think of this as being both a trusted old friend & a book of ‘secret’ techniques for negotiators. However the more I read, the more I discover that these techinques are based upon ancient wisdom – including of course the strategies of Sun Tzu. So – there is nothing new under the ‘Sun’!

‘Performers’ Rights & Mediation of Music Disputes’

From August 2024, I am writing a new practical handbook that I will offer for publication – ‘Performers’ Rights & Mediation of Music Disputes.’

The book is about legal & commercial negotiating principles for parties, legal representatives & mediators involved in a music business dispute.

For more information please visit the ‘Performers’ Rights & Mediation of Music Disputes’ page at www.carlislam.co.uk.

At the top of the page you will also find links to my articles published earlier in the year in the Law Society Gazette:

– ‘Golden rule in commercial mediation.’
– ‘Commercial Mediation of Music Disputes.’

These are free to read online – just Google.

I started work on the negotiation principles content for the new book in June.

Depending upon my available free time, I plan to complete the writing of the book before 1 January 2025. Work in researching the book began over 12 months ago.

From 1 March 2025 I also plan to write a book for academic publication entitled – ‘Cultural Heritage Law & International Dispute Settlement’. See the ‘Cultural Heritage Law & International Dispute Settlement’ page at www.carlislam.co.uk.

Both books have their genesis in the Diploma in Art Law course which I undertook part time at the Institute of Art & Law in London for 3 years and completed in December 2023. The legal principles underlying fiduciary duties owed by managers & their companies to artists are well known to Chancery practitioners. However what Chancery practitioners who have not studied Art Law may not realise, is that many of the same legal principles which underly the rights of visual artists, i.e. of artists who paint, draw, take photographs, or make sculptures, also apply to the rights of performers in the music industry. I made this connection when I was studying the ‘Artists Rights’ (including copyright and moral rights) module of the course. To my surprise and delight, many of the cases were in fact about music disputes. For ‘Music Law Geeks’ – of which I am proud to be one, there is a table of cases on the ‘Performers’ Rights’ page at www.carlislam.co.uk. The negotiated settlement of a music dispute is not a ‘nil-sum’ game. If you understand these legal principles – which are complex and multi-jurisdictional, you can imagine/facilitate the exploration & discovery of contractual solutions that are more commercially advantageous to the parties in dispute than going to court. Unless either the relationship between the parties has irretrievably broken down or the will does not exist to collaborate and ‘do a deal’, then as in the words of the late and great George Michael, commercial mediation can not only – ‘Heal the pain’, it can also liberate the parties, by enabling them to work out a creative deal to their mutual advantage. This can be achieved by maximising ‘joint-gains’ in a way that furthers each party’s individual interests. This I hope, is where my next book will add value!