At the invitation of LinkedIn I have just contributed a second idea to their discussion – ‘What strategies can you employ to overcome impasses in negotiations?’

The technique is simple – you might even think that it is obvious, i.e. avoid a ‘deal-breaker’ impasse in the first place.

I first wrote about this insight in my article – ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 1′, which was published online by Oxford University Press in Trusts & Trustees 14.11.2022, and in print for worldwide distribution in February 2023. There is a link to the article on the ‘Publications’ page at www.carlislam.co.uk.

For LinkedIn I wrote:

‘In my experience of negotiating the settlement of probate disputes, it is always better to be prepared to advance to a ‘known’ position than to retreat into the ‘unknown’. The acme of preparation is the development of a ’settlement range’. …’

In my forthcoming book, the 2nd edition of the ‘Contentious Probate Handbook’, which I am working on for publication by the Law Society of England & Wales later in the year, I outline a simple ‘step by step’ methodology for developing a bespoke ‘settlement range’ in a probate dispute.

When negotiating the settlement of a commercial dispute, you can extrapolate and apply the same basic building blocks.

Over the Summer I will be writing an in-depth article about ‘negotiation’ skills for academic publication, as the foundation for my online talk to members of the SCMA worldwide in October about ‘Mediation Advocacy in Trust & Probate Disputes.’

LinkedIn recently invited me as an expert on ‘negotiation’ to contribute a comment to a discussion on LinkedIn entitled – ‘What strategies can you employ to overcome impasses in negotiations?’

My reply is set out below. While seemingly obvious, you will not find it in any book about negotiation that I have read. This occurred to me whilst reflecting on an important commercial negotiation which was successful, when I worked in-house as a commercial lawyer negotiating contracts around the world for Rolls Royce & Alstom (in Paris):

‘If you can isolate, agree and understand the “constraint”, i.e. the road-block to agreement, then in my experience, quite often the solution presents itself to you almost instantly, in a flash. Very often the answer is obvious, and has been staring you in the face. However, for the brain to process the dynamics driving the impasse, in order to develop a solution through sudden insight, you need first to understand what those dynamics are and how they operate. It is not genius. It is logic + imagination.’

To probe, a Negotiator/Mediator may ask:

‘Why is this important to you?’

‘Why is this a problem for you?’

Today I would add – If a ‘constraint’ can be transformed into, or be re-framed as, an ‘opportunity’, then the result may be a ‘win/win/win’ solution all round – see my recent blog below – ‘Negotiation Skills & Strategies.’

This requires ‘deep’ and ‘intuitive’ listening skills, ’emotional intelligence’, and ‘clear thinking’.

You not only have to put yourself in the other person’s shoes. You also have to help them find a way around or through the apparent ‘road-block’, which in their mind works for them. In other words, you have to help them to work out a solution for themself. That requires subtlety.

To read the replies to the LinkedIn discussion provided by all invited experts – see: What strategies can you employ to overcome impasses in negotiations? (linkedin.com)

Website Motto: ‘Quam fluctus diversi, quam mare conjuncti – though the waves are many, the sea is one.’

Extract from the homepage:

‘This website contains an evolving bank of legal materials, on-line library resources, news, talks, articles, and blogs, about the dynamic and inter-related subjects of:

(i)   Conflict;

(ii)  International dispute settlement; and

(iii) Mediator tools, i.e. how a mediator can facilitate the negotiation of a road-map for peace (i.e. a ‘Peace Process’), which results in the agreement and practical implementation of a coherent, comprehensive and sustainable ‘political’ solution to the underlying ‘root’ and ‘dynamic’ causes of the conflict (i.e. a ‘Peace Treaty’). Thereby, ensuring peace, underwritten by security guarantees and International Law.

I founded this website in June 2014, and it was listed with my permission, on the website of the United States ‘American Foreign Service Association’ (the ‘AFSA’) based in Washington DC underneath the heading ‘Codes of Conduct from Other Services/Countries’ (http://www.afsa.org/ethics).

According to Google Analytics, in under 10 weeks the website grew from a zero readership to a weekly audience spread across Canada, the USA, South America, the Caribbean, the UK, the Netherlands, Belgium, Germany, France, Spain, Italy, Ukraine, the Russian Federation, North Africa, the Gulf states, Pakistan, India, China, South East Asia, and Australasia. …

I update the website weekly to assemble material for my next book (see the ‘Cultural Heritage Law & International Dispute Settlement’ page at www.carlislam.co.uk), including articles published in Foreign Affairs Journal, to which I subscribe. On the website, these articles are only accessible to myself.

The latest videos to be added to the ‘Conflict & Dynamics’ page at www.diplomaticlawguide.com under the sub-heading – ‘Articles & Talks’ include:

-Prof. Jeffrey Sachs on Ukraine, Gaza & Taiwan: The US is Risking ALL OUT WAR with Russia & China (youtube.com).
-Israeli historian Ilan Pappe launches new book ‘Lobbying for Zionism on Both Sides of the Atlantic’ (youtube.com).
-The Israel Lobby Is Real. Here’s EXACTLY How It Works. | Novara Media
-Israel’s Gaslighting TORN APART By Palestinian-American Analyst – w/. Omar Baddar (youtube.com).
-West Sleepingwalking into Major Wars – Alastair Crooke, Alexander Mercouris & Glenn Diesen (youtube.com).
-ICC must investigate British ministers for complicity in Gaza war crimes (declassifieduk.org).

In an age when youtube channels are overtaking mainstream TV news channels, not just in the UK but globally, as a first port of call by members of the public for accurate and unbiased journalism about conflicts and international relations, it is my hope that visitors to the website will be able to quickly access news stories and commentary by leading journalists and academics, which do not appear on mainstream TV channels.

Above the entrance to the Oracle at Delphi there is a Greek incription – ‘Γνῶθι σαυτόν’ (‘gnōthi sauton’). It means, ‘Know thyself!’ I am currently reading through 9 books on negotiation as preparation for an online talk I am giving to members of the SCMA worldwide at 4pm GMT on 24 October 2024, entitled – ‘Mediation Advocacy in Trust & Estate Disputes.’ Today I have started to read ‘Getting to Yes With Yourself’ by William Ury (2015). He describes the book as the missing ‘prequel’ to ‘Getting to Yes.’ On p.6 he sets out 6 challenges. The 1st is that instead of ‘judging yourself’, do the opposite & ‘listen’ empathetically to yourself for ‘underlying needs’. So, ask yourself – ‘what do I really want/need & why?’ – why am I doing this & putting myself through this & for what?, i.e. what is this dispute/claim really all about? In contentious probate disputes, there is often a subliminal ‘driver’ which is not just money. It may for example be a feeling of having been taken advantage of my elder sibling who is a bully, i.e. a deep-seated feeling of ‘injustice’ which empowers a party to retaliate through litigation and thereby obtain some form of justice/redress & to inflict pain. As any Barrister who is worth their salt will tell you, the ‘Law’ and ‘Justice’ are just about on nodding terms. Litigation is a minefield. So, this may be a costly mistake which can exceed the value of a disputed estate/equity. Thus a mediator must ‘listen’. There are 3 levels of listening, which are discussed in ‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), at pp. 99, 100 & 102. ‘By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the … mediation. Among its benefits, reflective listening:
·       builds trust and respect,
·       enables the disputants to release their emotions,
·       reduces tensions,
·       encourages the surfacing of information, and
·       create a safe environment that is conducive to collaborated problem-solving.
Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’

The three levels of listening are:

‘Listening at level 1 – This is listening at the other person’s level and is really all about self, not the other person and as such, in a mediation, it can be disastrous. Signs that the listener is at level 1 include:

• Asking for more facts such as “how many?” – “when?” – “Who?” – “What’s the history?” When the participant hasn’t mentioned them.
• Noticing an inner dialogue that results in you asking yourself such questions as:
• “What can I ask next?”
• “Was that a good enough question?”
• Wanting to give advice; and
• Talking about you with “I” and “Me.”

Listening at level 2 – Here the listener and the other person are as one in an absorbing and deeply focused discussion that is characterized by:

• Rapport with body language, voice and energy levels matched.
• A flowing conversation, yet with the other person doing most of the talking.
• The listener is picking up on language, skillful and short questions are asked concentrated on the other’s agenda.
• The listener is summarizing, reflecting and clarifying in order to extend the other’s thinking.
• The listener hears what is not being said, as well as what is and is listening for underlying meanings.

Effective and valuable dialogue takes place at this level. Mediators can certainly regard level 2 listening as their default level.

Listening at level 3 – At level 3 the listener becomes more aware of:

• Emotion.
• What risks might be taken in the conversation.
• What are the other persons underlying choices and what is really at stake.
• The listener trusts his or her intuition that there may be an emotional or intellectual connection with the other person.

Level 3 is a moment of real connection that most people seldom achieve in normal everyday conversations.

By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the negotiation or mediation. Among its benefits, reflective listening:

• builds trust and respect,
• enables the disputants to release their emotions,
• reduces tensions,
• encourages the surfacing of information, and
• creates a safe environment that is conducive to collaborative problem-solving.

Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’ (‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), The Society of Mediators, pages 99, 100, and 102).

In Heyes v Holt, 2024 EWHC 779 Ch, HHJ Paul Matthews granted the defendant an order requiring the claimants to pay a sum of money into court, with the sanction of dismissal of the claim if this was not done within a specified time:

‘[37]. … CPR rule 24.6… provides: “When the court determines a summary judgment application it may— … (c) make its order subject to conditions in accordance with rule 3.1(3).” Rule 3.1(3) provides: “(3) When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.” …

[39] In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119, Males LJ (with whom Hamblen LJ and Dame Elizabeth Gloster agreed) said: “43. … [T]here is a category of case where the defendant may have a real prospect of success, but where success is nevertheless improbable and a conditional order for the provision of security may be made. This is the typical case where a conditional order may be made requiring the provision of security for the full sum claimed or something approaching that sum.”
[40] Nevertheless, the court made clear that the caselaw had laid down certain principles to be observed in exercising this jurisdiction: “45. [1st where D] has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for the defendant to comply … 46. [2nd] the burden is on [D] to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court … 47. [3rd – D] must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it … 51. [4th] despite the fact that the Rules expressly contemplate the possibility of a payment condition being imposed, it is not incumbent on a defendant to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order …54. [5th] the court’s power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be appropriate in other circumstances, for example … if there is a history of failures to comply with orders of the court or there is a real doubt whether the party in question is conducting the litigation in good faith. However, the court needs to exercise caution before making a conditional order requiring a defendant who may have a good defence to provide security for all or most of the sum claimed as a condition of being allowed to defend … ”

In para [69] the learned judge directed:
‘For the reasons given above, (i) I dismiss the application for summary judgment, but conditionally on charges of various interests belonging to the claimants being made in favour of the defendant, or alternatively payment into court, in accordance with paragraphs 47-49 above; (ii) I will order a stay of the claim to allow for a second mediation; … I express the hope that the parties will be able to resolve their differences without the need for a lengthy and expensive trial.’
So, the Defendants have in effect called the claimant’s bluff. This case will now almost certainly settle in mediation.

Over the next two months, in my free time, I am researching & writing an article for publication in an academic journal about commercial negotiation skills & strategies. This exercise is a foundation & prelude for a 1 hour online talk I am presenting at 4pm GMT on Thursday 24 October 2024, to members of the SCMA worldwide (scmastandards.com). The talk is about ‘Mediation Advocacy in Trust & Estate Disputes.’ This is also a rare opportunity to update my negotiation skill set by innovating new negotiation techniques for use in settling probate disputes. Today I am completing the reading of the latest book by William Ury – ‘Possible.’ One of the key negotiation concepts and techniques discussed in the book, is how to ‘Engage the Third side.’ The idea at the centre of this technique is to think ‘Win-Win-Win.’ As Professor Ury writes on p.216 of his book, ‘[We] need to take a big step beyond our previous thinking about “win-win”. From “win-win” we need to move to “win-win-win”. We need to think in terms of a third win – a win for a larger community, for the future, for our children. This third win catalyses and sustains the efforts of the third side over the long term.’ I agree. In a probate dispute a ‘win-win-win’ scenario is not only: (i) preservation and expansion of the capital value of the estate for the benefit of future generations, through tax-efficient and retrospective post-death estate planning within the available time window; but also (ii) the survival and continuation of a family owned business. That requires the preservation of relationships, networks, and maintenance of liquidity, which in turn requires competent professional governance. William Ury has mediated every kind of dispute from probate/business succession disputes to ceasefires, and was the imaginative ‘brain’ behind the meeting which eventually took place between President Trump and Kim Jong Un, in Singapore, following which the risk of a nuclear conflict occurring between the US and North Korea dropped from 50% to less than 1% (see p.199 of the book). I have today also reposted two posts I wrote on Sunday about mediation advocacy i.e. negotiation. The negotiation techniques each post illustrates are explained in my comments below. I will expand upon these techniques in the article and talk.

• ‘Mediation of Yacht Building Disputes.’ – In order to prepare, first think backwards from your planned destination. This is where in the course of the negotiation you want to persuade your opponent to move towards, i.e. it is the deal-making zone (‘DMZ’) based upon your lay client’s settlement range and BATNA. This is why I use a Work Breakdown Structure (‘WBS’)as an intellectual  tool for settling disputes. At the apex of the WBS is the optimal boundary of my lay client’s settlement range. I work backwards from that, so that I can see the entire terrain and plan a road-map for how to get my opponent to voluntarily move toward, and eventually into, my client’s DMZ.
• ‘The paradigm of a “store of value” in Mediation’ – In order to help the mediator, you need to prepare your lay client to be open and frank with the mediator about what he values, needs and prioritises, and why. The mediator may then have a ‘light bulb’ moment, when he suddenly realises that either: (i) P.1 only wants the orange peel, whereas P.2 only wants the orange pulp, or (ii) that because the wishes, needs and priorities of P.1 and P.2 are asymmetrical, that counter-intuitively, they can nevertheless be reconciled. The method of reconciliation involves both P.1 and P.2 seeing the prized asset over which they are competing, not as a ‘thing’, but as a ‘store of value’, which can be shared. In which case, it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by restructuring the legal and beneficial ownership, management and control, use, enjoyment and commercial exploitation of the asset, to their mutual advantage.

‘Mediating an estate dispute where a treasured family yacht is a prized asset.’

This was a one hour challenge, based on a real-life scenario, gamed out in a Society of Mediators members Training Day in December 2021, in which delegates, including myself, tested and developed our mediation skills and techniques.

I applied the ‘orange peel’ v. ‘orange pulp’ (‘Getting to Yes’) concept, to listen to and understand what each participant (‘P’) actually valued, needed and prioritized.

The tools available to the P’s for enlarging and dividing such an ‘asset’ pie, include the options of: (i) keep the yacht in the family; (ii) sell it; (iii) lease it; or (iv) innovate a ‘creative’ and bespoke family: ownership; control; and use structure, whereby legal title and/or beneficial ownership of the asset would be transferred to P.1. on terms which enabled P.2 to enjoy the use of the yacht for e.g. one month a year. Compare a ‘time-share’ lease arrangement. I would later develop and apply this idea in my article: ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning’ published by Tolley in Taxation, 08.03.2022. In the article, which was about using Mediation as a tool for life-time estate and business succession planning, I wrote:

‘If an international business family does not know how to start an inter-family discussion about how to put their house in order before a monumental event occurs – such as loss of capacity or death of the head of the family – a pre-emptive process of mediation can be used to create a safe space in which
each key family member is empowered to:
● voice their individual needs, concerns, hopes, expectations and priorities to a non-partisan and beneficially disinterested person, who is bound by confidentiality and has the soft skills to talk to each of them; and
● speak through the mediator, to a multi-disciplinary team of professional advisers around the world, appointed by the family office.
They can then discuss, develop, and agree bespoke and innovative solutions to the problem, ie a holistic strategic plan and roadmap for practical implementation. For example, where participants in a mediation adopt the paradigm of a “store of value” to perceive and reconfigure the attributes and
worth to each of them of a luxury asset, and the wishes, needs and priorities of each participant are asymmetrical, it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by restructuring the legal and beneficial ownership, management and control, use, enjoyment and commercial exploitation of the asset, to their mutual advantage.’

This original idea of creating in the mind/consciousness of each P, the ‘paradigm of a “store of value” …’ was the ‘light-bulb’ moment I had when I mediated the ‘Yacht dispute.’

In principle there is a design element in the whole spectrum of yacht (‘Y’) building activities, ranging from concept design to appearance, functional criteria, detailed design, choice of materials and methods of work. Unspecified design work inevitably results in consequences which are only realised following construction. The combined impact of unspecified design work in aggregate can result in radical changes in the:
 ·      Planned and priced volume of materials incorporated in the yacht (‘Y’).
 ·      Specified deadweight tonnage (‘DWT’) of Y.
 ·      Specified speed and fuel consumption of Y.
 ·      Specified meta-centric height of Y.
 ·      Stability and trim of Y.
Consequently the yacht delivered by the yard on completion may be materially non-compliant with the yacht building contract. The performance of unspecified design work inevitably results in the incurrence by the Yard of extra man-hours and materials in carrying out the unspecified work, and subject to critical path impact and programmed float, in delay and disruption.
So, why mediate such disputes?
What the owner requires is a yacht which matches his needs.
What the yard needs is the time and money to deliver this.
The litigation/arbitration risks and costs in a boat building dispute can exceed the value/cost of performing the necessary extra work.
So, why not do a deal instead, by focussing on the problem, and working together to solve it, i.e. by scoping and pricing what needs to be done, and then entering into a ‘principled’ negotiation about how this additional cost is to be allocated, i.e. borne, between the owner and the yard?
Here there is a real benefit in preserving an ongoing commercial relationship, unless the yard goes out of business. The opportunity for doing a creative deal which satisfies the underlying commercial interests of each side, and which a judge does not have the power to impose, is only limited by the imagination of the parties’ legal representatives. In the experience of the author, these disputes invariably settle. So, why not think constructively from the outset about what needs to be done, and how and when that work can be performed, in order to get the yacht on the water without further delay and disruption? That is potentially a win/win scenario.
See also my International Conference Paper presented to the Royal Institute of Naval Architects in London about the ‘Legal and Commercial Consequences of Performing Unspecified Design Work in Ship-Conversion Projects’. You can download this on the ‘Publications’ page at www.carlislam.co.uk .

Note also – ‘ All seagoing vessels registered in the UK are assigned to a specific class, which defines their type of permitted use, determines which certification they must hold and specifies the inspection and survey regime required to comply with this certification. These classes are established and assigned by the Recognised Classification Societies, who also approve surveys and inspections.’ Google – Vessel classification and certification – GOV.UK (www.gov.uk). This states:
‘Large commercial yachts are defined as those vessels which are:
in commercial use for sport or pleasure 24 metres load line length or more or over 150 gross tonnes if built before 21 July 1968 carry no cargo and no more than 12 passengers are in commercial use for sport or pleasure

Certification for large commercial yachts.

The certificates that large commercial yachts must carry vary according to their gt. Further information on this can be found in Section 28 of the Large Commercial Yacht Code. You can download MSN 1792 (M) Large Commercial Yacht Code (LY2).’

As an example, the following is a methodology I developed years ago for a hypothetical major project dispute. The list of acronyms is set out below the Methodology:
(i) Factors:
‘S&T’ = Suspension (i.e. to avoid Liquidated Damages (‘LD’s’) and for non-payment) and Termination for (RA and non-payment).
 ‘RA’ = Risk analysis (including political risk; force majeure [‘FM’]; liability for latent defects; liability for unlimited consequential loss; and taxation e.g. if a permanent establishment is created onshore).
 ‘V’ = Variations (entitlement to extra time and costs e.g. for a change in specification; FM etc).
 ‘WBS’ = Work Breakdown Structure.
(ii) Equation:
Based upon S, input CPA into WBS = P.
Adjust P to account for: F; LD (insurance premiums); PB (cost); and RA = expected and planned Net profit (‘NP’).
 Identify the gap between P and EURCO = ‘PEG’.
Adjust the PEG to account for V = Adjusted commercial outcome (‘ACO’).
The gap between ACO and NP is the deal-making zone [‘DMZ’]. The question then, is how to close the gap, e.g. by enhancing EURCO through specification (including time, design and materials changes), and project management efficiency/savings.

(iii) Accronyms:

‘CPA’ = Critical Path Analysis.
‘F’ = Float.
‘ERUCO’ = Expected revenue following commercial operation.
‘LD’ = Liquidated damages.
‘M’ = Margin (calculated by reference to project costs – which may be reduced if the time and money incurred in negotiating contracts can be reduced through mediation).
‘P’ = Price.
‘PB’ = Performance bond.
‘S’ = Technical specification (including completion date).
‘S&T’ = Suspension (i.e. to avoid LD’s and for non-payment) and Termination for (RA and non-payment).
‘RA’ = Risk analysis (including political risk; force majeure [‘FM’]; liability for latent defects; liability for unlimited consequential loss; and taxation e.g. if a permanent establishment is created onshore).
‘V’ = Variations (entitlement to extra time and costs e.g. for a change in specification; FM etc).
‘WBS’ = Work Breakdown Structure.

If you are wondering how I developed this idea and methodology, during the 2nd year I worked in-house for Rolls-Royce, negotiating major projects in the Far East, and as a reward for the part I played in negotiating a major project contract awarded by a state utlity in Malaysia to my subsidiary of Rolls Royce, I undertook and successfully completed a one-year part-time training course provided by Rolls-Royce in-house, to its Project Managers of Major Projects around the world. I was a solicitor at the time, and Company Solicitor of the Rolls-Royce subsisdiary which had been awarded the multi-million pound contract in Malaysia. As far as I am aware, I was the first lawyer in the history of Rolls Royce, to undertake this training course. Two years later, I was recruited by Alstom to work in Paris. When I talked to my French colleagues about using a work breakdown structure in order to prepare for the negotiation of a major project they had no idea what I was talking about. During that time I also used the concept of WBS mapping, as a tool in settling commercial contract disputes, including a major project dispute with a utility in Iran.

‘Possible is the new yes’, is the idea at the heart of William Ury’s most recent book – ‘Possible – How We Survive (and Thrive) in an Age of Conflict’ (2024). William Ury is the co-founder of Harvard’s Program on Negotiation. He is one of the world’s most influential living experts on negotiation and collaboration. When I used to work as a contract negotiator in-house for Rolls-Royce & Alstom (in Paris), I carried with me to major project negotiations in India, Malaysia, Japan, South Korea, and China, a hard-back Notebook, in which I had written down key ideas discussed in ‘Getting to Yes’ (which was co-written by the late Professor Roger Fisher & William Ury).  

I had the honour of meeting Professor Fisher during a short academic visit to Harvard in April 2002 (see the ‘International Cultural Heritage Law & Dispute Settlement’ page at www.carlislam.co.uk).

During what became a conversation which lasted over two hours, I mentioned that since my first multi-million pound power project contract negotiation in Kuala Lumpur – when I was just 27, I had applied the techniques set out in ‘Getting to Yes’ with great success, and had also developed a few insights into the dynmaics at play in ‘high-stakes’ negotiations. I learned, that to be trusted and taken at your word, i.e. believed, you never bluff. This means that your superiors must be ready to do what you are saying. In his new book, William Ury writes:

‘When Roger Fisher, Bruce Patton, and I worked on Getting to Yes more than 30 years ago, “yes” meant a mutually satisfactory agreement. Today, I believe that the meaning of yes must be expanded. The new yes means to lean in and embrace conflicts for all they have to offer. The new yes is a transformative yes. If we can embrace and transform our conflicts, we can learn how to live and work together. And if we can do that … there is no problem, large or small, that we cannot address.’  

Over the next four weeks I am carrying out research for a new article I am writing for publication entitled – ‘Mediation Advocacy in Trust & Estate Disputes.’ Mediation advocacy is negotiation conducted by a legal representative, that is facilitated by a mediator. I am going to write this through the lens of ‘Transformative mediation’ = ‘Transformative negotiation’, i.e. that there is a dynamic synergy between the two. The challenge I must think about as a ‘Mediator’ (‘M’) & ‘Negotiator’ (‘N’), and the thought experiment I will have to invent, to test the answer, is how can M and N help each other to transform a dispute into a problem-solving opportunity. This requires analysis of potential road-blocks, & of how N can help M, to engage N’s opponent, in a constructive problem-solving conversation with N, through M.

I would welcome any comments you can contribute, about your own experience of negotiating disputes in mediation.

I am currently writing-up Chapter 3 (Probate Disputes), and today completed the section about ‘Want of execution.’ When I researched this chapter earlier in the year, I came across a general evidential point in relation to the judicial approach advocated in ‘Gestmin.’ This is of general application in relation to the ‘memory’ of witnesses. The following is a very brief extract from the current draft of paragraph 3.2.2 (Necessity for strict compliance) of the book:

‘In Gestmin SGPS S.A. v. Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) … Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony, observing that: …

The best approach for a judge to adopt in the trial is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’
See also Chapter 5 (Litigation) paragraph 5.3 below, and CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] to [10] (approved in Kogan v. Martin [2019] EWCA Civ 1645, in which Floyd LJ stated at [88] that, ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’
What constitutes the ‘strongest evidence’ in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the threshold to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied.

Draft Chapter 3 currently runs to 82 pages, and today I have completed the writing-up of 18 of those pages. The next section I am writing-up, which is a personal favourite, is – ‘Lack of testamentary capacity.’ So – back to the book!