Extract from the new mediation Chapter of the 2nd edition of the Contentious Probate Handbook.
‘Irrespective of the fact specific legal merits of a dispute, the settlement of a Contentious Probate Dispute invariably involves a trade-off between ten inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each participant’s [P’s] BATNA.
The Deal Making Zone [‘DMZ’] exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:
– Relative Gains v. Relative Losses [‘P.1 – P.2’].
– Common Ground [‘CG’].
P.1 – P.2 [Relative Gains v. Relative Losses]:
- Declaration & vindication of legal rights.
- Property & Money.
CG [Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes]:
- Preserving the capital value of the estate.
- Engineering a tax-efficient distribution of estate assets.
- Avoiding litigation risk and thereby saving costs, time, energy.
- Avoiding publicity.
- Avoiding further stress and anxiety.
- Preserving a relationship and goodwill if worth saving.
The author posits that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2. That is the DMZ. Visually this can be represented as follows:
In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives. Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.’