The following is an extract from a revised outline for a book which I have emailed to a publisher, who last week expressed an interest in publishing a book to be written by me over the next 6 months about negotiation and mediation advocacy skills:

Title: ‘How to agree – Creative Dispute Resolution Skills.’

Chapter Structure
·       Introduction.
·       First things first! – Understanding P’s objectives & reasons.
·       Planning.
·       Hidden costs.
·       Hidden value & the Interdependence paradigm.
·       Deal-Making Zone (‘DMZ’).
·       Offers.
·       Negotiation mindset.
·       Negotiation strategy.
·       Negotiation behaviour.
·       Conclusion.
·       Precedents.
·       Table of obstacles & cognitive errors in negotiation.
·       Table of Mediation Advocacy tools & strategies.

About the author
Carl practices as both a Barrister and CMC Registered Mediator, at 1 EC Barristers in London (www.1ec.co.uk). His personal website is www.ihtbar.com.

Introduction

‘You can’t always get what you want
But if you try sometimes, well, you just might find
You get what you need.’

(The Rolling Stones)

Where negotiation is facilitated by an independent third party, this is known as Mediation. This book is written for both: (i) parties in dispute, i.e. those who participate in Mediation; and (ii) where legally represented, for their Mediation Advocates. So, throughout the book I will refer to a party in dispute/participant in Mediation as being ‘P’, to their legal representative as being ‘MA’, and to the Mediator as ‘M’.

In Mediation, the possibilities are only limited by the imagination of the participants [‘P‘s’] and their Mediation Advocates [‘MA‘s’].

Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible.

However for the process to result in settlement of a dispute by agreement each:

1st – participant must decide what ‘enough’ means to them, i.e. what they ‘need’; and

2nd – Mediation Advocate must persuade their opponent [‘MA.2′] and his lay client [‘P.2‘], to agree to what their lay client [‘P.1‘] will settle for, i.e. to give P.1 what he really ‘wants’, and vice-versa.

This requires creative joint-problem solving by all involved in the process.

(For more information about the book & the ‘Research Bibliography’ please visit the ‘Mediation Advocacy’ page at www.carlislam.co.uk).

So, as I approach the end of the journey with my 8th book – the 2nd ed Contentious Probate Handbook, which has in effect been approved for publication by the Law Society, who have sent the completed and peer-reviewed manuscript (which ran to 636 pages of A.4), to a copywriter for laying-out, leaving just proof-reading, I am preparing methaphorically to ‘put to sea’ again in my solo yacht – but this time for a journey around the world lasting only around 6 months!

‘There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities. … By Article 2 [of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970], the parties recognise that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin, and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property, and the parties undertake to oppose such practices with the means at their disposal.’ (Iran v. Barakat [2007], per Lord Phillips CJ at: 155, 157).

Subject to five exceptions, the issue of whether a museum in the UK acquired good title to an ancient artefact [‘A’] before it arrived in the UK and was sold or gifted to a museum, will be decided by applying the lex situs, Winkworth v. Christies Ltd [1980]. This is a matter of expert evidence.

One of the five exceptions to the Lex Situs rule is where the foreign law is considered by the English court to be contrary to English public policy, e.g. because it favours a thief, which was posited in the City of Gotha case.

The reasoning of the Judge in The Islamic Republic of Iran v. Denye Berend [2007] demonstrates the application of the relevant principles.

So, the circumstances in which A was removed, appropriated and acquired, are relevant to a claim for an equitable remedy brought in the High Court in London.

If an expert persuades the judge that removal and appropriation was not authorised, and if it had been, that it would have amounted to a violation of international law at the time, then I would submit that the judge may infer that the removal and appropriation of A was unlawful at the time, and therefore that the museum could not have acquired a beneficial proprietary interest in A. That is because the transferor was incapable of passing title in A to the museum under English law. Therefore, the museum holds A in its collections subject to a constructive trust.

This reasoning is also pertinent to the mediation of cultural property disputes. Becuase ‘using interests rather than rights or power to frame cultural property disputes would avoid these problems and would be a more productive way to resolve such disputes. This is the case because, … creativity can create value that meets both parties’ interests.’ (Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335S at pp. 367 – 369)’.

‘There is no such thing as a single, uniform process or set of procedures which constitute a “restitution blueprint”. Nor is there a single, defined goal or endpoint. Rather, responding to a restitution case requires you, the museum, to (re)consider your relationship with objects in your collection, their history, origins and acquisition – and most importantly, the people for whom they may have a special meaning today. Receiving a claim for restitution or repatriation can therefore be seen as an opportunity to learn and reflect, and to connect with people and the collection in new ways. Generally, the experience need not be defensive and adversarial, but can be collaborative and enriching. Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel.’ (Art Council England – ‘Restitution and Repatriation: A Practical Guide for Museums in England’). 

This is why mediation is approipriate in a cultural property dispute.

·       This is a waste of time, because you cannot win an argument in Mediation as the process is not a trial.
·       Arguments lead to further entrenchment of positions.
·       Mediation advocacy requires the establishment of personal rapport with people you disagree with and reasoning with them to persuade them that they should see what is in dispute as your lay client does, and that their interests coincide with those of your lay client.
·       Therefore, the outcome of the process depends to an extent upon whether your mediation advocate [‘MA.1’] is possessed of the inter-personal skills to initiate/develop a rapport with the other mediation advocate [‘MA.2] and their lay client [‘P.2].
·       Respect engenders trust.
·       So, avoid the acute angle.
·       Never tell MA.2/P.2 that they are wrong.
·       A misunderstanding is never ended by an argument, but by tact, diplomacy, conciliation, and a sympathetic desire to see the other person’s point of view. In other words, MA./P.1 cannot get MA.2/P.2 to agree by telling them that they are wrong.
·       This will have the opposite effect, because MA.1/P.1 will thereby have insulted the intelligence, pride, ego and self-esteem of MA.2/P.2.
·       That, it is counterproductive.
·       Always allow your opponent to save face!
·       Never place your opponent in the wrong.
·       If you give someone a fine reputation to live up to, it is possible that they may try not to disappoint you.
·       So treat people gently, with honesty, respect and sincerity, as they may reciprocate.
·       Always make MA.2/P.2 feel happy about doing what you suggest.
·       Do not back them into a corner.
·       Instead, try to win them over gently and tactfully to your way of thinking.
·       If you are going to prove anything, do not let them know it.
·       Be subtle and adroit, so that nobody feels that they have been manipulated.
·       Instead of trying to prove, try to find the facts, i.e. be forensic.
·       Be aware that:
(a)   People continue to believe what they have become accustomed to accepting as true.
(b)    The resentment aroused when doubt is cast on their assumptions leads them to seek a justification for carrying on with those beliefs.
(c)    Their reasoning becomes finding arguments for adhering to their beliefs. So, refrain from direct contradiction of the sentiments of others and from positive assertion of your own.
(d)    Instead of contradicting MA.2/P.2, show some absurdity in a proposition, i.e. distinguish it in the present situation from the situation in which it would logically be correct.
(e)    Propose your opinions in a modest way.
(f)     This leads to increased receptivity and decreased contradiction.

• A cognitive error is a failure to think clearly i.e. a routine barrier to logic.
• Rolf Dobelli describes 99 forms in his book, ‘The Art of Thinking Clearly’ (2014).
• Let’s examine two forms: (i) ‘Unconscious bias’; and (ii) ‘Loss aversion.’
• ‘Unconscious bias’ refers to a set of attitudes & beliefs that the P’s, M & MA’s may be unaware of.
• It has two components:

(i)      ‘attitudes’; &

(ii)     ‘stereotypes’.

• Attitudes can be positive, negative, or neutral, whereas a stereotype is a specific trait that is probabilistically associated with a category.
• As applied to people, stereotypes are usually unwelcome, even if they are positive, because they implicitly deny the individuality of the person being stereotyped.
• Negative stereotypes are even more unwelcome because they are commonly used to marginalise or oppress people stereotypically associated with a trait.
• Stereotypes are categories that constrain and shape what a person believes about, and expects from, other people.
• One of the challenges in managing stereotypes is that they are a form of automatic thinking, i.e. they spring to mind even if they represent a view that our conscious minds find abhorrent.
• Overcoming unconscious bias is the key to clear & rational thinking.
• The techniques for reducing bias are psychological strategies, i.e. they try to change, albeit indirectly, how our minds process difference.
• We can also examine our bigoted thoughts & feelings through introspection..
• The cognitive bias of ‘Loss aversion’, is that the fear of losing something, motivates people more than the prospect of  gaining something of equal value.

‘When making decisions, most people, most of the time, give more weight to the risk of suffering a loss of a given magnitude than to the chance of gaining a benefit of the same magnitude. This preference seems irrational, and it is considered a cognitive bias [known as ‘Loss Aversion’]. Loss aversion refers to the symmetry in the evaluation of positive and negative outcomes, in which losses loom larger than the corresponding gains. In other words, a person is more deterred by the idea of losing a particular sum of money than excited by the idea of gaining the same sum: for most people the fear of losing [£100] is more intense than the hope of gaining [£150]. … [Raising] awareness of bias requires sensitivity to cognitive distortions, including being aware of one’s resistance to seeing bias.’ (Linveh, Yair Overcoming the Loss Aversion Obstacle in Negotiation, Harvard Negotiation Law Review, Vol. 25:187, Spring 2020, 187-212, pp.1-2 & 15).

• If M and the MA’s understand the principle of ‘Cognitive error’, then they can save the P’s from themselves, thereby avoiding destructive behaviour which does not help the P’s get what they each ‘need’ through facilitated negotiation and agreement.

A trust fund/estate is a finite resource. If prudently managed it can grow. If legal costs are incurred which are indemnifiable out of the trust fund/estate, it will diminish. Preserving the capital value of the trust fund/estate by doing a deal in Mediation and thereby avoiding the incurrence of unnecessary costs = common ground. ‘Expanding the pie’ by releasing and sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground.

In preparing his lay client [‘P’] for participation in the Mediaiton Day, a Mediation Advocate [‘MA’] needs to explain to P:

(a)    That there is always an unquantifiable element of risk in any  trust/estate litigation for all parties involved.
(b)    That ‘realism’ i.e. the acknowledgment by each side in a dispute, of the existence of litigation risk for both sides, is what eventually opens the door to settlement in Mediation, i.e. by bringing about a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration.’
(c)    That in order for P to make a commercial decision about whether ‘the candle is worth the flame?’, P needs to think about the dispute resolution process as being a ‘commercial proposition’/ ‘transaction.’
(d)    Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’  which becomes the foundation of his opening and closing offers.
(e)    P’s calculation should factor in both ‘hidden costs’ and potential ‘hidden value’.