- My next book.
- Slides for my online talk to members of the SCMA worldwide at 4pm GMT on Thursday 24 October about, ‘Mediation Advocacy in Trust & Estate Disputes.’
- Research Bibliography.
My next book
Title
‘How To Agree – Mediation Advocacy in Trust & Estate Disputes.’
Introduction
‘You can’t always get what you want
But if you try sometime you’ll find
You get what you need.’
(The Rolling Stones)
Where negotiation is facilitated by an independent third party, this is known as Mediation. This book is written for both: (i) parties in dispute, i.e. those who participate in Mediation; and (ii) where legally represented, for their Mediation Advocates. So, throughout the book I will refer to a party in dispute/participant in Mediation as being ‘P’, to their legal representative as being ‘MA’, and to the Mediator as ‘M’.
In Mediation, the possibilities are only limited by the imagination of the participants [‘P‘s’] and their Mediation Advocates [‘MA‘s].
Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible.
However for the process to result in settlement of a dispute by agreement:
1st – each participant must decide what ‘enough’ means to them, i.e. what they ‘need’; and
2nd – each Mediation Advocate must persuade their opponent [‘MA.2‘] and his lay client [‘P.2‘], to agree to what their lay client [‘P.1‘] will settle for, i.e. to give P.1 what he really ‘wants’, and vice-versa.
This requires creative joint-problem solving by all involved in the process.
While in particular, the book is about Mediation in the context of Trust and Estate disputes, in a general sense, the process and ideas I discuss apply to the Mediation of any dispute. That is why the main title of the book is ‘How to agree.’ This is the principal theme of the book.
SCMA Talk – ‘Mediation Advocacy in Trust & Estate Disputes’
Carl Islam, Barrister, SCMA Accredited mediation Advocate, CMC Mediator, Author of the Contentious Trusts Handbook & 1st & 2nd Editions of the Contentious Probate Handbook, published by the Law Society, 1 EC Barristers, Temple, London (www.1ec.co.uk & www.ihtbar.com).
Please note that my Slides and Speaking Notes below will be updated on completion on 14 October 2024.
Slides
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 5 – Deal-Making Zone (‘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.
P = Participant in Mediation.
Disclaimer
What follows is not advice and are my personal views.
SLIDE 1 – 1st things 1st – Goal-setting & prioritisation
- What does your lay client (i.e. 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?
SLIDE 2 – Commercial planning
- 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 & 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.
- 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) ‘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 opening & closing offers.
(e) P’s calculation 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’.
- The ‘Pareto Principle’ or ’80/20′ rule 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?
- This is linked to ‘distributive’ & ‘integrative’ strategies for sharing the pie.
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.
SLIDE 5 – Deal-Making Zone (‘DMZ’)
SLIDE 6 – Offers
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.
SLIDE 8 – Negotiation strategy
1st Principle – Build a working relationship with M & your opponet 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 your opponent – treat him as a partner.
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
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