‘Why results matter in the mediation of probate/trust disputes.’

In my forthcoming article for Trusts & Trustees (OUP) – ‘Mediating probate and trust disputes – process challenges and tools: part 2’
I argue that, ‘If the primary reason the P’s [i.e. Participants] have come to the table is to contain costs, eliminate litigation risks, and thereby to maximize net gains, then the resolution to “do a deal” must exist. It also follows, that the P’s are paying for mediation, i.e. have invested in the “process” in order to achieve that outcome. They are not paying M [i.e. the Mediator] to facilitate a conversation as some form of therapy in order to see where that may lead. The secret of success in the mediation of a probate/trust dispute, is preparation. [Where the Mediation Day is preceded by pre-mediation Zoom/TEAMS calls – as discussed in Part 1 of my article which is available to download on the “Publications” page at www.carlislam.co.uk], each P needs to be ready to discuss their “settlement range” with M during the first round of private sessions. If risk-aversion accentuated by the asking of reality-testing questions can help the P’s psychologically to park their emotions and to focus instead on using mediation as a “risk-management” tool to get what they “need” (which will not be everything that they “want” because a compromise must be agreed), then the outcome will depend upon the skills of the P’s negotiators, i.e. their legal representatives. While you can lead a horse to water, you cannot force it to drink. However, once they have come down the hill to the edge of the river, and can see what is on the other side, then psychologically, most P’s will want to cross the river rather than climb back up the hill. The bridge across the river is the existence of common ground. Common ground already exists in preserving the capital value of the estate/trust fund. If the P’s will allow M to show them the way to the river, they may discover that there is more common ground in the dispute than they had previously imagined/thought possible. While it is up to the P’s to decide what to do, as they will own the outcome of the process, the closer they get to settlement, the harder it will be to spend more time and money on litigation.’ – That is why results matter in the mediation of ‘probate/trust’ disputes.