Part 1 is available to view of the ‘Publications’ page at www.carlislam.co.uk.
‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.’: About | Trusts & Trustees | Oxford Academic (oup.com). It is also the official journal of the International Academy of Estate and Trust Law.
‘Although life can only be understood backwards, it must be lived forwards’.[i] 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, 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’. Some might add that an ancillary challenge for M is to understand the facts – the narrative, and it is often helpful if each P provide M with their statement of facts.
Orthodox mediator strategy is to move the P’s from considering their positions to considering their interests, and ultimately their needs. There is no magic formula. Each M will have their own style and approach. Mediators expect the unexpected, and progress at mediation is rarely linear. Achieving settlement at mediation requires momentum, which in turn requires flexibility, so, while it has a ‘beginning’, a ‘middle’ and an ‘end’, the process does not always take place in that order, and in practice, M’s do not adhere to a rigid structure/agenda. In other words, mediation is always improvised to an extent. However, for the purposes of analysis and discussion, in the opinion of the author, a well-constructed Mediation typically involves seven distinct phases which can overlap:
(iii) Exchange of further information.
(iv) Formulation of proposals.
(vi) Adjustments to narrow the gap.
(vii) Agreement of terms in principle followed by the drafting and execution of a binding Settlement Agreement.’
[i] ‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’, by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353.Activate to view larger image,