·       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’.