Mediation of Will Trust and Probate disputes involves both evaluative and facilitative negotiation.
Winning in a negotiation = doing an optimal deal.
That involves compromise, because in the real world, nobody ever gets everything that they want.
Furthermore, at mediation you may not have current property valuations, i.e. you are negotiating with imperfect information.
ADR is imperfect, but potentially more profitable than litigating, because in litigation one of you will lose.
It is also more creative, because you can agree terms that the Court cannot order at the conclusion of a trial. It therefore requires imagination.
Whereas in a court hearing counsel addresses the judge, in a mediation counsel can speak directly to the other parties in the dispute.
The keys to success are strategy and skillful negotiation, i.e.
(a) planning, preparation, and critically, determination of your client’s settlement range (i.e. the zone within which your client has commercially decided to settle by ‘doing a deal’);
(b) communication of litigation risks to your opponent, i.e. to:
(i) reduce his expectations; and
(ii) draw him into your client’s settlement zone;
so that you can negotiate the best deal for your client; and
(c) a structured and principled process for:
(i) exploring the practical options available for ‘doing a deal’, i.e. based upon the assets available, values, and ownership claims; and
(ii) agreeing terms of settlement that are both capable of practical implementation, and sustainable (i.e. a framework, or structure within which a pragmatic deal is ‘doable’).
I have always advocated getting on with job, i.e. not wasting daylight on a plenary session, which risks inflaming tempers.
There is no risk of your client inadvertently bumping into a hostile family member in a remote mediation. Furthermore, I am hearing from mediators that parties tend to be more businesslike and focused in remote mediations, i.e. because there is less oxygen for posturing and grandstanding by the solicitors and barristers involved.
In a talk broadcast on 29 March to members of the Professional Negligence Bar Association, entitled ‘One year on: lessons to be learned from mediations and hearings during Covid-19’ Michel Kallipetis QC:
1. in a virtual hearing before a judge there are three questions the judge expects counsel to address:
1.1 what do you want me to do [i.e. what order do you want me to make];
1.2 can I do it [i.e. what jurisdiction and powers does the court have to make the order]; and
1.3 why should I do it [i.e. what are the merits based upon facts, evidence, and law];
2. likewise, in preparation for a virtual mediation, the legal representatives need to discuss three questions with their client:
2.1 what must you have out of any settlement;
2.2 what can you not live with, [i.e. what are your walk-away red-lines];
2.3 what would you like to have out of a settlement [i.e. what is your shopping list, and is this merited, practical, and realistic].
The judicial ethos underlying PD57AC, which concerns witness statements for use at trials in the Business and Property Courts and applies to new and existing proceedings, but only to trial witness statements signed on or after 6 April 2021, is that less is more.
As a matter of best practice, I am advising clients to follow the PD whether it applies to their claim or not.
Culturally there needs to be a shift in emphasis is preparation for a hearing between:
(i) the amount of time and costs incurred by solicitors in disclosure, preparing documents, and bundles; and
(ii) intellectual time incurred by counsel in developing arguments and submissions to present at the hearing in order to persuade the judge on the day – because that is the work and product that will get a result.
I am not saying that counsel can make bricks without clay. However, at the hearing of an interim application (and you may only have 20-30 minutes in which to get your points across), a judge is more likely to be persuaded by the quality of oral advocacy, than by documents which he or she may not have even received, or have read beforehand.
I think that since Covid, the rules of the game have changed.
The message that appears to be coming from the Bench, is that in a remote hearing, a judge a more likely to be persuaded by oral argument than by documents.
If that observation is correct, then it does not matter whether your judge is someone who prefers to read or listen, it is striking the right balance between oral and written advocacy that will get a result on the day, i.e. a win.
While a chronology is key, and the Case Summary and List of Issues are important, witness statements should now comply with the guidance in PD57AC, and I think that the underlying ethos should be applied to: all documents; skeleton arguments; and the preparation of electronic bundles.
I also think that these practical ground-rules apply to preparation for a virtual mediation.
Mediation is not an adversarial duel. The aim is to do a deal. Therefore, the mediator is more likely to be effective from the outset, if he understands what your client wants; must have; cannot live with; and would like to get. In my experience, unless you have had that conversation with your client beforehand, it is unlikely that the case will settle, and some clients do not understand that mediation is all about doing a deal, and that there is no point in mediating unless and until all parties have the will to settle, i.e. are ready to do a deal.
So, focus on persuasion, rather than documents.
That is why you need counsel in mediation – not as a champion, but in order to persuade the other parties through the mediator, and of course the mediator cannot convey your message if he does not understand your client’s commercial thinking and imperatives. Do the mediation math!
The key to success is preparation.
For the methodology I have designed and pioneered for trust disputes – the ‘BME Mediation method’, see Chapter 12 (ADR and settlement) of my book the ‘Contentious Trusts Handbook’, published in July 2020 by the Law Society of England and Wales.
For mediation techniques that apply in will and probate disputes, see Chapter 10 of my book, the ‘Contentious Probate Handbook’ , published by the Law Society in 2016.