Mediation Advocacy

  • Recording of my online talk presented to members of the SCMA worldwide at 4pm GMT on Thursday 24 October about, ‘Mediation Advocacy in Trust & Estate Disputes.’ The talk was recorded on Zoom and it will be the first 1 hour of content that I post on the new YouTube Channel when I launch my channel in 2025.

  • The slides for my talk. Please note that my Speaking Notes are no longer available to view. Instead my forthcoming book, the 2nd Edition of the Contentious Probate Handbook, which is scheduled for publication by the Law Society for publication between mid to late February 2025, contains a 50 page section about Mediation Advocacy.

Slides to my talk

Introduction slide – ‘Mediation Advocacy in Trust & Estate Disputes’

Speaker:

Carl Islam, Barrister, SCMA Accredited mediation Advocate, CMC Mediator, Author of the Contentious Trusts Handbook and the Contentious Probate Handbook, published by the Law Society, 1 EC Barristers, Temple, London (www.1ec.co.uk & www.ihtbar.com).

Structure of the talk

SLIDE 1 –   First things first! – Understanding P’s objectives & reasons.

SLIDE 2 –   Commercial planning.

SLIDE 3 –   Hidden costs.

SLIDE 4 –   Hidden value & the Interdependence paradigm.

Slide  5A –  Deal-Making Zone (‘DMZ’).

Slide  5B –  Visual Representation of the DMZ.

SLIDE 6 –   Offers.

SLIDE 7 –   Negotiation mindset.

SLIDE 8 –   Negotiation strategy.

SLIDE 9 –   Negotiation behaviour.

SLIDE 10 – Conclusion.

Abbreviations

BATNA      Best alternative to a negotiated agreement i.e. trial.

DMZ          Deal Making Zone.

M               Mediator.

MA            Mediation Advocate.

MA.1         You.

MA.2         The other P’s MA.

P                Party in dispute/Participant in Mediation.

P.1             Your lay client.

P.2             The other party to the dispute, i.e. ‘participant’ in mediation.

Disclaimer

What follows is not advice and are my personal views.

Introduction

  • ‘Problem’ – Outcome of Mediation is to an extent an unknowable quantity.
  • ‘Cause’ – The ‘uncertainty principle.’
  •  I.E. you (MA.1) cannot know what P.2/MA.2 are actually thinking.
  • ‘Solution’ – i.e. how do you increase the odds of settlement?
  • 1st – You prepare yourself and your lay client (i.e. P.1) to negotiate effectively with P.2/MA.2.
  • 2nd – You ‘hook’ P.2/MA.2, i.e. you ‘irresistibly engage their interest and appetite’ by making an ‘interesting offer.’
  • Core point of my talk is that effective preparation and negotiation is the solution to the uncertainty ‘problem.’
  • In this talk, I will provide you with a ‘tool-kit’ for effective preparation and negotiation, i.e. ‘Mediation Advocacy,’ in the facilitated settlement of a trust/estate dispute.

SLIDE  1  – 1st things 1st – Goal-setting & prioritisation

  • What does your lay client (‘P’), value, want, need, and prioritise, and why?
  • These are the questions that a MA needs to explore, clarify & define with his lay client, in order to:

1st –  Ascertain P’s intentions and strategic objectives.

2nd –   Reality test each aim.

3rd –   Help P to formulate a practical i.e. ‘doable’ strategy for achieving his aims in Mediation.

4th –    Help P to formulate a hierarchy of ‘priorities’, so that there is mutual clarity between the MA and P about what terms of settlement are ‘enough’ to satisfy P’s needs and priorities.

  • What are P’s unsatisfied underlying needs?
  • 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.

SLIDE  2  – Commercial planning 

  • What do I need to do to help my client prepare to do a deal?
  • You need to explain:

(i)      There is always an unquantifiable amount of risk in any  trust/estate litigation for all parties involved.

(ii)     ‘Realism’ i.e. acknowledgment of the existence of litigation risk is what eventually opens the door to settlement in Mediation, i.e. by bringing about  a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration.’

(iii)     To decide 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)     This should factor in both hidden costs & potential hidden value.

SLIDE 3 – Hidden costs

  • To discover the existence of hidden costs evaluate the dispute resolution process through the prism of the ‘Pareto Principle’.
  • This holds that 80% percent of the output from a given situation is determined by 20% of the input.
  • If you think of trust/estate litigation as being a ‘product’, then what is the percentage of wasted ‘manufacturing’ costs incurred in proceeding to trial, when compared to the total costs of ‘doing a deal’ in mediation, on terms of settlement that are ‘enough’, i.e. that your lay client can live with?

SLIDE 4 – Hidden value & the Interdependence paradigm

  • Interdependence can result in 2+2 = 6.
  • That is because of ‘synergy’.
  • So the P’s can each gain more by working together than they can by working apart, i.e. against each other.
  • 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.

SLIDE 5A –   Deal-Making Zone (‘DMZ’)

  • The Deal Making Zone (‘DMZ’) exists in the space between two interacting parallel dynamics which may converge in the mind i.e. consciousness of each P:

(i)      Relative Gains v. Relative Losses [‘P.1 – P.2’].

(ii)     Common Ground [‘CG’].

  • P.1 – P.2 (Relative Gains v. Relative Losses):

(i) Declaration and vindication of legal rights.

(ii) Control.

(iii) Property & Money.

(iv) Costs.

  • CG (Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes):

(i) Preserving the capital value of the estate.

(ii) Engineering a tax-efficient distribution of estate assets.

(iii) Avoiding litigation risk and thereby saving costs, time, energy.

(iv) Avoiding publicity.

(v) Avoiding further stress and anxiety.

(vi) Preserving a relationship and goodwill if worth saving.

SLIDE 5B –   Visual Representation of the DMZ

  • The gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2. That is the DMZ.
  • Visually this can be represented as follows:

Pre- Convergence

 

P.1 —————————————————————————P.2

 

 

CG?

 

Convergence

P.1 ————-P.2

CG

SLIDE 6 –  Offers

  • In practice, there are only 3 types of opening offer P can make:

(i)      An ‘unacceptable’ offer – that is an offer that is so unreasonably high or low that it will be rejected by the other participant and does not cause them in any way to alter their approach to settlement. At worst it may result in the other participant walking out and ending the process prematurely.

(ii)     An ‘acceptable’ offer – that is an offer which is so high or low that the other participant will bite your hand off – which means an opportunity to secure a better deal has been lost.

(iii)     An ‘interesting’ offer – that is an offer which makes the other participant really think. It is unlikely to be accepted but the aim is to make the other side engage with the proposal as a starting point for opening a discussion which can then be worked on to produce an interesting counter-offer, both sides are then fully engaged, and the mediation can progress towards a final settlement.

  • Before P can make an ‘interesting offer’, there has to be reciprocal clarity about:
  • the legal elements of the claim;
  • estate or trust fund assets; and
  • corresponding commercial values – i.e. about the basic ‘mediation maths’.
  • If the will to ‘do a deal’ is shared by the P’s, the mediator can help them to narrow and eventually close the gap.

SLIDE 7 –  Negotiation mindset

  • 1st principle – Do not have an argument with anyone about anything!
  • 2nd Principle – Do not retaliate i.e. react to any provocation.
  • 3rd principle – Be aware of cognitive errors e.g. loss aversion.

SLIDE 8 –  Negotiation strategy

  • 1st Principle – Build a working relationship with M & 2/P.2 from the outset.
  • 2nd Principle – There is no such thing as a trivial detail.

SLIDE 9 –  Negotiation behaviour

  • 1st Principle – Do unto others as you would have them do unto you!
  • 2nd Principle – Adopt an unconditionally constructive approach to 2/P.2 – treat them as partners.
  • 3rd Principle – Empathetic communication – Listen to understand in order to be understood.
  • 3 Levels of listening.
  • 4th Principle– Initiate a principle-centred dialogue.’
  • 5th Principle of Mediation Advocacy – Think win-win-win.
  • 6th Principle – Bait the hook to suit the fish.
  • 7th Principle – Isolate the constraint.

SLIDE 10 – Conclusion

  • Mediation is a game.
  • The essential skills of Mediation Advocacy, i.e. ‘rules of playing the game’ in the Mediation of a trust/estate dispute are:

(i)      Follow M’s ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative to litigation, by entering into a constructive exploration of the existence of common-ground (‘CG’).

(ii)     Be ready to not only negotiate, but also to structure and document the terms of a deal – which may be complex.

(iii)     You must be ready and willing to work side by side with the other Mediation Advocate(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.

(iv)    This requires the establishment of a ‘working relationship’ between the Mediation Advocates through the Mediator, 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’.

(v)     The MA’s must work with M to bring about this paradigm shift in thinking.

  • So, success at Mediation depends as much upon the skills of the Mediation Advocates as it does upon the Mediator, i.e. Mediation is a joint-enterprise.