‘Mediation of Probate Trust & Tax Disputes – Challenges & Tools’ – This is the title of an article I am currently writing which I am aiming to submit to Trusts & Trustees (OUP) in August, for publication later this year.
Introduction – ‘In essence, mediation is a forward-looking conversation. The role of a mediator (‘M’) is to manage the process and ensure that it is conducted in accordance with the terms of the Mediation Agreement. M 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 that divides them; and
·       empower adversarial parties to a dispute to become participants [‘P‘s’] 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 and agreed bundle of documents; legal merits; litigation risks; the time value of money; and the benefits (including tax benefits) of ‘doing a deal’ now, instead of incurring further legal costs by resuming trench warfare and going 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 or 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 a participant’s objectives, needs and priorities are, and why.
While it is not the function of M to speak truth to power, M can facilitate the re-framing of a dispute as an opportunity, by enabling each P think about what is important to them, so that the P‘s can agree upon a ‘methodology’ i.e. a ‘road map’ for convergence and consensus. This requires a ‘paradigm shift’, i.e. acceptance by each P that there is a better way of resolving their dispute than going to trial. The tools that M can use to engineer a sudden outbreak of common sense are the subject of this article. If you have any ideas or comments about mediation that you would like to contribute please email carl@ihtbar.com.