I completed the final draft of the 2nd Ed of the Contentious Probate Handbook for publication by the Law Society on Friday. If approved that just leaves laying-out & proof-reading.
Since June, to sharpen my mediation advocacy i.e. negotiation skills ‘saw’, I have been reading books about negotiation.
In October I am giving an online talk about this to a worldwide audience of mediation advocates [‘MA’s’].
In my free time between now & then, I am writing an article for publication in a leading global journal for trust & estate practitioners about ‘Mediation Advocacy’.
In the article I posit that mediation is a game & ask myself what are the rules for players? Here are some of the rules:
(a) Follow the Mediator’s [M’s] ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative i.e. ‘third-way’ to litigation, by entering into a constructive exploration of the existence of common-ground, which first requires M to enquire about your lay client’s wishes, needs, priorities, and reasons.
(b) Be ready to not only negotiate, but also to structure and document the terms of a deal – which may be complex.
(c) You must be ready and willing to work side by side with the other MA’s without their lay clients being present, in order to isolate constraints and work out solutions, that they can sell to their lay client(s), and vice-versa.
(d) This requires the establishment of a ‘working relationship’ between the MA’s, through M, whereby in each other’s eyes, the MA’s are not rival competitors, but partners, working together to find a way of dealing with their lay clients’ ‘differences’, by seeing these differences as a common ‘challenge’.
(e) So, the MA’s must work with M to bring about this paradigm shift in thinking.
(f) This requires the development by each participant [‘P’] of a ‘settlement range’ [‘SA’] ahead of the Mediation Day.
(g) The extent to which each P’s SA overlaps with the SA of the other P/P’s = common ground [‘CG’].
(h) In a Trust/Estate dispute CG may be capable of expansion before division and distribution.
(i) Thus, before the mediation day each MA must have a candid discussion with their lay client i.e. P, about how much is ‘enough’, i.e. about what is the ‘price of doing a deal on the day?’
(j) That conversation should be prefaced by reminding their lay client about what they advised during their very first conference, i.e. that litigation always involves an unquantifiable element of litigation risk for all parties involved.
(k) So, the commercial question for their lay client to answer for themselves is – ‘at what point is the candle no longer worth the flame?’
(l) Then each P can make an informed and calibrated commercial decision about when ‘to deal’ and ‘when walk away from the table’, before they come to the table and engage as a ‘player’, in the ‘Mediation Game’.