You can choose to focus on a ‘positive paradigm’ instead of being ovewhelmed by a ‘negative’ and ‘destructive’ one.

When I watch the news in the morning, and after my jaw has dropped to the floor – instead of despairing about how humans behave, and the absence of ethical leadership nearly everywhere I look, I sometimes listen to ‘Westlin’ Winds’ by Robbie Burns. Perhaps it will also help you to maintain your focus and poise in these deeply troubling times, as the ‘paradigm’ or ‘lens’ through which you view an ‘event’, is as Robbie Burns shows in these lyrics, entirely your choice, i.e. under your control. Even if events around you are outside your control, in your mind you can choose to focus on a ‘positive paradigm’ instead of being ovewhelmed by a ‘negative’ and ‘destructive’ one.

See also: https://lnkd.in/eiJYcejn

Westlin’ Winds by Robbie Burns – https://lnkd.in/e3zSCxAd

‘Now westlin winds and slaughtering guns
Bring autumn’s pleasant weather
The moorcock springs on whirring wings
Among the blooming heather
Now waving grain, wild o’er the plain
Delights the weary farmer
And the moon shines bright as I rove at night
To muse upon my charmer.
The partridge loves the fruitful fells
The plover loves the mountains
The woodcock haunts the lonely dells
The soaring hern the fountains
Through lofty groves the cushat roves
The path of man to shun it
The hazel bush o’erhangs the thrush
The spreading thorn the linnet
Thus every kind their pleasure find
The savage and the tender
Some social join and leagues combine
Some solitary wander
Avaunt away! The cruel sway
Tyrannic man’s dominion
The sportsman’s joy, the murdering cry
The fluttering gory pinion
But Peggy dear, the evening’s clear
Thick files the skimming swallow
The sky is blue, the field’s in view
All fading green and yellow
Com let us stray our gladsome way
And view the charms of nature
The rustling corn, the fruited thorn
And every happy creature
We’ll gently walk and sweetly talk
Till the silent moon shines clearly
I’ll grasp thy waiste and, fondly pressed
Swear how I love thee dearly
Not vernal showers to budding flowers
Not autumn to the farmer
So dear can be as thou to me
My fair, and lovely charmer.’

‘Mediation – Thought Experiment – Pareto principle.’

As a ‘thought experiment’, a graphic way to illustrate the benefits of the mediation process, you can roughly compare the cost-effectiveness of mediation with litigation by reference to the ‘Pareto Principle’/‘80:20 rule’.

The ‘Pareto Principle’ or ‘80:20 rule’ holds that 80 per cent of the output from a given situation is determined by 20 per cent of the input.

If you think of contentious probate litigation as being a ‘product’, then what is the percentage of wasted ‘manufacturing’ costs incurred in proceeding to trial, when compared to the total costs of ‘doing a deal’ in mediation, on terms of settlement that are ‘enough’, i.e. that your lay client can live with?

If parties engage in mediation early and ‘do a deal’, then they avoid the incurrence of trial preparation and trial costs. So, say the mediation process costs each party £2,500 in mediator fees plus £5,000 in solicitors’ costs, then the mediation process costs amount to £7,500 per party in total. Now, if you assume, for the sake of argument, that in a contentious probate trial, depending of course upon the issues involved, that costs incurred by each party amount to £100,000 (and the costs each party actually incurs in an estate dispute is often far in excess of

that amount), then £7,500 as a percentage of £100,000 is 7.5 per cent. Thus, avoidable ‘direct’ production costs amount to £92,500 for each party. That figure does not include the unquantifiable and irrecoverable ‘indirect’ costs of: (i) loss of time (i.e. loss of the ‘time-value’ of money); (ii) disruption to your life; and (iii) personal stress and its impact upon your family, your health and your quality of life, i.e. anxiety and chronic sleep deprivation, which can result in clinical depression. Whilst this example is arithmetically simplistic, when you compare the cost effectiveness of mediation as a process with litigation by analogy to the ‘Pareto Principle’/‘80:20 rule’, then it is self-evident that valuable time and money can be saved by entering into mediation early, instead of marching to war, which may possibly end in mutual self-destruction.

Put another way – if you think of mediation as being a ‘time planning exercise’, then, on the arithmetic above, it can generate 92.5 per cent more free/extra time in which to live a happy and healthy life, when compared with litigation, whilst at the same time saving you 92.5 per cent of the financial cost of resolving a bitter and divisive inter-family dispute. This holds for both parties in the dispute.

The Mediation process and Mediation Advocacy are discussed in detail in my new book, see:

https://www.wildy.com/isbn/9781784462345/contentious-probate-handbook-practice-and-precedents-paperback-38-cd-rom-law-society-publishing
https://bookshop.lawsociety.org.uk/p/contentious-probate-hand-2nd-edition-paperback/

The Wildy’s page for the Contentious Probate Handbook: Practice and Precedents 2nd ed is now live,

See: https://lnkd.in/dHtHQjBz

Wildy’s deliver all around the world, and you can now pre-order the book online to be posted out to you almost anywhere in the world. Please take note readers in: India, Pakistan, Malaysia, Singapore, New Zealand, Australia, Canada and the United States.

Following publication, Wildy & Sons – which is the oldest Law Bookshop in the world, will also be displaying the book in the Carey Street window of their shop in Lincoln’s Inn Archway. This looks on to both the Royal Courts of Justice (at the back) and the Law Society building on Chancery Lane. This is a great honour for an author. The book will also be placed on display in the Law Society ‘Hall of Fame window!’ of their publications, inside the Law Society building itself – so you cannot miss it if you are a visiting solicitor.

See also – https://lnkd.in/d7SaZXsH

The book is on schedule for publication in print during the week commencing 24 February, and I will post an update following publication.

Note in particular the following comment kindly contributed by Professor Barney Jordaan –

‘While a lot has been written about mediation, mediation advocacy has been neglected, until now. This book goes a long way to filling that gap. It provides practical advice about how to become an effective mediation advocate from the author’s own rich experience as mediator and party representative. While its focus is on advocacy in trust and estate disputes, it has far wider appeal and relevance for mediation in other legal fields as well. It is an indispensable guide for lawyers who would like to expand their practice into the mediation space.’

(Barney Jordaan, LL.D (Stellenbosch University), Professor at Vlerick Business School, Belgium, Extraordinary Professor at Stellenbosch Business School, South Africa, Negotiation and Dispute Resolution Practitioner, Internationally Accredited Mediator, and author of Negotiation And Dispute Resolution For Lawyers (2022),Edward Elgar Publishing).

‘What is Mediation?’

‘When parties in dispute sincerely and deeply understand each other, then they can open a hidden door to creative settlement in Mediation. That is because their “differences” have been transformed from being obstacles to communication and progress, into “stepping-stones” to synergy. In other words, [working together – the Mediator and Mediation Advocates can help the parties in dispute i.e. the participants in the Mediation], to set themselves free from the past, by [themselves] working together to bring about a better future.’ (Extract from Chapter 7 – ADR of the 2nd Edition of my forthcoming book, the 2nd Edition of the ‘Contentious Probate Handbook’, which is due to be published by the Law Society later this month).

Mediation, which as a process, can be carried out either in person or online, is essentially a forward-looking conversation.

The role of a Mediator is to manage the process and ensure that it is conducted in accordance with the terms of the ‘Mediation Agreement’ signed by everyone attending the Mediation.

The Mediator must also:

– Create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the commercial problem which divides them.

– Empower adversarial parties to a dispute to become participants in a creative, bespoke and collaborative problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their respective position statements; the documentary evidence in an agreed bundle of documents; legal merits; litigation risks; the time value of money; and the benefits of ‘doing a deal’ now, instead of incurring further legal costs by resuming trench warfare and proceeding to trial.

This requires ‘counter-intuitive’ thinking and behaviour and can result in a ‘paradigm shift’ which results in a creative solution that a court cannot impose.

It therefore also requires a ‘commercial’ rather than a ‘forensic’ legal and procedural mind-set, and some imagination.

The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what each participant’s individual objectives, needs and priorities are, and to understand why.

While it is not the function of a Mediator to speak truth to power, a Mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the participants can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus.

This requires a ‘paradigm shift’, i.e. acceptance by each participant that there is a better way of resolving their dispute than proceeding to trial.

‘The approach of the court in ordering compulsory mediation post 01.10.2024 – DKH Retail Ltd & Ors v City Football Group Ltd [2024].’

The judgment of Mr Justice Miles in the recent case of DKH Retail Ltd & Ors v City Football Group Ltd [2024] EWHC 3231 (Ch), in which the learned judge considered an application made at a Pre-Trial Review, for compulsory mediation before trial (in a Shorter Trials Scheme case about a trade mark), is instructive of the approach of the court in ordering compulsory mediation post 01.10.2024.

Compulsory mediation was ordered, and the case settled.

I have invited my editors at the Law Society to include paras [28] to [44] of the judgment in my forthcoming book, the 2nd Edition of the Contentious Probate Handbook, which is on schedule for publication in 3/4 weeks time.

I would also like to thank my colleague at 1 EC Barristers in London – the ‘very very learned!’ – Mr Jacob Meagher Esq. (https://lnkd.in/eYCXyuxB), for bringing this case to my attention.

Note what the judge stated in:

[31]  The claimants submitted that [the 01.10.2024 CPR] changes recognise a sea-change in the approach of the courts to ADR. They said that another important aspect of the overriding objective is to ensure that the court’s resources are properly allocated not only to the parties but to other court users.

[32]  The claimants referred to the findings of the Civil Justice Council ADR Working Group that mediation has worked in complex and entrenched disputes, including where the ADR process appeared to be unlikely to succeed and where one or other party believed that he or she had a strong case.

[33]  The claimants contended that this is a case where the court should exercise its power to order a mediation. …

[34]  … [T]here has been no mediation to date, although there have been unsuccessful settlement negotiations. The parties are about to incur hundreds of thousands of pounds of further costs. A short, sharp, mediation of one day before the end of December may well allow the parties to avoid at least some of those costs. This would also potentially save court time and resources.

[38]  … [I]n many cases the parties’ positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences.

[40]  … The purpose of mediation is to remove roadblocks to settlement. …

[41]  A mediation of this case will be short and sharp, and the documents needed for it would be brief. The defendant did not suggest that mediation would significantly disrupt the parties’ preparations for trial.

Notes added:

‘The ‘too late in the day’ paradox’ –

The defendant submitted that it was too late for ADR:

‘[37] Counsel for the defendant also says that it is very late in the day to seek the order, that the parties have already spent hundreds of thousands of pounds, and that the trial is imminent. He also says that his client had very limited availability for a mediation in December. In short, it is too late in the day; it is not a case where his client is being obstructive; mediation will fail; and this is a case where a ruling is needed.
[39] I see some force in the defendant’s submission that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties’ positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties’ positions are unknown. That cannot be said here.’

The ‘too late in the day’ paradox is that if preparation for trial is nearly complete, then ADR cannot significantly disrupt i.e. impact upon the ‘critical path’ for completion of preparation, i.e. the Defendant’s argument was based upon a false premise.