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 and thereby avoiding the incurrence of unnecessary costs = common ground. ‘Expanding the pie’ by releasing and sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground.

In preparing his lay client [‘P’] for participation in the Mediaiton Day, a Mediation Advocate [‘MA’] needs to explain to P:

(a)    That there is always an unquantifiable element of risk in any  trust/estate litigation for all parties involved.
(b)    That ‘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.’
(c)    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.’
(d)    Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’  which becomes the foundation of his opening and closing offers.
(e)    P’s calculation should factor in both ‘hidden costs’ and potential ‘hidden value’.