It should be a Chancery Barrister who is also a TEP (‘CBTEP’).
Well you would expect me to say that because this is what I am.
Now unless a Mediator (‘M’) has a solid grasp of estate planning principles & Inheritance Tax Law (& I am the author of 5 bestselling books on these subjects – ‘Tax-Efficient Wills Simplified’ – which is available form Amazon folks as a Kindle book you can read it wherever you are whether on the beach or stuck in an airport etc) then there are 2 problems:
1st – If during a pre-mediation Zoom call with each participant (‘P’) M ask each P – ‘How would you like to make the best use of the time available on the day/days?’ (NB a Zoom mediation unlike a mediation in person can be paused i.e. you can take breaks & the P’s can dip in & out so it can be spread of time-zones & days) & P.1/P.2/P.1 & P.2 reply ‘I would like to spend part of the time exploring the possibility of creating synergy in order to expand the estate pie through tax-efficient post death re-structuring of legacies & bequests’ – then unless M is a CBTEP he/she will not have a clue what each p is asking him/her to do because he/she does not speak the language of tax & estate planning & has no knowledge of estate planning tools – which may require the evolution of bespoke & sophisticated asset holding structures. That is problem 1 – M is useless because he/she is totally out of their depth.
2nd problem – Preparation. While M will not be providing any tax advice to either P, in my experience, the mediation of all trust/estate disputes engages both a facilitative & to some extent an evaluative style. While a CBTEP (who is multi-lingual in the law of tax, trusts & estate planning) does not need to prepare i.e. because he/she is not giving any technical advice, each P does. Not least because if they get it wrong & their client later suffers from ’buyer’s remorse’ there is going to be trouble! Now as a mediation advocate I make it clear in my client care letter that I exclude the provision of tax and estate planning advice from my retainer with the solicitor & their lay client. When engaged I also make it clear that where settlement is likely to require the input of a CTA that the solicitor should involve a CTA before the mediation day in order to discuss with us the development of tax-efficient proposals at a meeting to develop a ‘settlement range.’ So, unless M is CBTEP he/she may be completely blind to the opportunity of discussing with each P at that stage not only whether they wish to use part of the day engaging in a conversation in order to expand the estate pie for distribution by creating synergy, but also about what preparation each p needs to take in order to enter into such a conversation intelligently.
Failure to prepare = a lost opportunity to settle on terms whereby each P can maximise their potential gains & avoid losses by undertaking tax-efficient post death restructuring of estate assets.