‘Mediating probate and trust disputes’ – Published

My article – ‘Mediating probate and trust disputes—process challenges and tools: part 1’ has been published in print in Trusts & Trustees, Volume 29, Issue 1, February 2023, Pages 19-27: https://academic.oup.com/tandt/issue/29/1

I am currently writing part 2 for publication by Oxford University Press. The Abstract for Part 2 states:

‘Although life can only be understood backwards, it must be lived forwards. Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a Mediator (‘M’) is to understand what each P wants, needs, and prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. As discussed in Part 1, the ‘hook’ is the making of an ‘interesting offer’. On paper, a theoretical settlement zone exists somewhere in the gap between:

(i)     the maximum net capital value of each P’s claim; and

(ii)     each P’s BATNA (‘best alternative to a negotiated agreement’) – which in litigation is trial, i.e. the amount below which P will walk away from the table. The challenge in reducing the size of the gap is to make adjustments. …

In this Part, the author discusses the challenges and tools available to a Mediator during the Mediation Day, to help the P’s:

·       overcome psychological barriers to engagement; and

·       develop their own simple or complex solution through engagement with M in private sessions, and with each other in plenary sessions,

in order to agree and sign-off on binding terms of a Settlement Agreement in overall and final settlement of their dispute.

Mediation is the art of knowing how, when and why to ask questions which can bring about a ‘cognitive shift’ in each P’s thinking and behaviour, i.e. a paradigm shift about what they perceive to be at stake and the value of settling. This includes each P’s analysis and evaluation of potential:

(i)         gains;

(ii)        opportunities;

(iii)       risks;

(iv)       costs (including intangibles e.g. health, relationships, reputation); and

(v)        losses (including the time-value of money).

Metaphorically, ‘questions’ are the ‘steering-wheel,’ whereby M can navigate a ‘difficult conversation’ with each P in order to bring closure by helping each P to sort out their dispute for and by themselves. … [T]he author has attempted to set out a Mediator’s Toolkit, i.e. a ‘conceptual framework’ for the structuring of questions by M whilst conducting private sessions with each P, using tools to respond to the challenges that typically arise in the Mediation of a Probate/Trust Dispute.’

I am currently writing the 2nd edition of the ‘Contentious Probate Handbook’ for the Law Society for publication in 2024, which will include an extended chapter on ADR in contentious probate disputes, including JENE and mediation. There is a link to the article on the ‘Publications’ Page at www.carlislam.co.uk