This weekend I have been writing up my Speaking Notes & Slides for the talk I am presenting online to members of the SCMA on 24 October about ‘Mediation Advocacy in Trust & Estate Disputes’.

The structure of the talk is as follows:

SLIDE 1 –  Understdning P’s objectives & reasons.
SLIDE 2 –  Commercial planning.
SLIDE 3 –  Hidden costs.
SLIDE 4 –  Hidden value & the Interdependence paradigm.
Slide  5 –   Deal-Making Zone (‘DMZ’).
SLIDE 6 –  Offers.
SLIDE 7 –  Negotiation mindset.
SLIDE 8 –  Negotiation strategy.
SLIDE 9 –  Negotiation behaviour.
SLIDE 10 – Conclusion.

To provide you with a flavour of the talk, ‘Slide 2 – Commercial planning’ states:

·       A trust fund/estate is a finite resource.
·       If prudently managed it can grow.
·       If legal costs are incurred which are indemnifiable out of the trust fund/estate it will diminish.
·       Preserving the capital value of the trust fund/estate by doing a deal in Mediation & thereby avoiding the incurrence of unnecessary costs = common ground.
·       ‘Expanding the pie’ by releasing & sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground..
·       MA [i.e. a Mediation Advocate] needs to explain to P [i.e. their lay client]:
(i)     That there is always an unquantifiable element of risk in any trust/estate litigation for all parties involved.
(ii)    ‘Realism’ i.e. the acknowledgment by each side in a dispute, of the existence of litigation risk for both sides, is what eventually opens the door to settlement in Mediation, i.e. by bringing about a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration.’
(iii)    That in order for P to make a commercial decision about whether ‘the candle is worth the flame?’, P needs to think about the dispute resolution process as being a ‘commercial proposition’/ transaction.’
(iv)   Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’ which becomes the foundation of opening & closing offers.
(v)    P’s calculation should factor in both hidden costs & potential hidden value.’

I am planning to develop this talk into a 3 hour course that I can teach in 2025, both in person & online. As far as I am aware, this will be the first course of its kind that has been designed for contentious trust/probate practitioners. Many of the Mediation Advocacy principles that I discuss are also of general application & this course may be of wider interest i.e. to commercial mediation practitioners around the world.