Mediation Advocacy – Carl Islam

Slides & Speaking Notes for my online talk to members of the SCMA worldwide at 4pm GMT on Thursday 24 October about, ‘Mediation Advocacy in Trust & Estate Disputes.’
My next book – ‘Mediation Advocacy in International Cultural Heritage Disputes.’
Research Bibliography.
My Essay – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

SCMA Talk – ‘Mediation Advocacy in Trust & Estate Disputes’

Carl Islam, Barrister, SCMA Accredited mediation Advocate, CMC Mediator, Author of the Contentious Trusts Handbook & 1^st & 2^nd 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.

Structure of my talk

SLIDE 1 – 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 – 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:

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

2^nd – Reality test each aim.

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

4^th – 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

1^st principle – ‘Do not have an argument with anyone about anything!’
2^nd Principle – Do not retaliate i.e. react to any provocation.

SLIDE 8 – Negotiation strategy

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

SLIDE 9 – Negotiation behaviour

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

SLIDE 10 – Conclusion

MY SPEAKING NOTES

SLIDE 1 – Goal-setting & prioritisation

What does your lay client (i.e. P), value, want, need, and prioritise, and why?
These are the questions that a Mediation Advocate needs to explore, clarify and define with his lay client, in order to:

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

2^nd – Reality test each aim.

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

Since a competent trust/estate Mediator will also probe and enquire about these same issues during the first few rounds of private sessions with each P, then in preparing their lay client for Mediation, a MA needs to think like a Mediator.
There is a simple technique.
Put yourself into M’s shoes, play Devil’s Advocate (with your client’s permission), and ask P the question , ‘If M were to ask you if you could have one thing at the end of this day what would it be & why?’

‘If M were then to ask you what your next most important objective is what is that & why?’ etc.

Deals do not happen in a vacuum.
There is an atmosphere.
So, to understand what is driving a dispute and why, i.e. what P’s unsatisfied ‘underlying needs’ & ‘interests’ are and why, a MA first need to identify them.
Above the entrance to the Oracle at Delphi there is a Greek inscription – ‘Γνῶθι σαυτόν’ (‘gnōthi sauton’).
It means, ‘Know thyself!’ For a MA this = ‘Know thy client!’
On page 6 of ‘Getting to Yes With Yourself’ (2015), Professor William Ury sets out six challenges which confront parties in dispute.
The first, is to identify your ‘underlying needs’.
A MA can help their lay client to do this by asking – ‘If the mediator asks you – “why are you doing this and for what?” – how would you answer him and why?
The reply to this question will reveal what the dispute is actually all about, in the authentic words of your lay client.
In contentious probate disputes, there is often a subliminal, i.e. psychological ‘driver’, which is not just money.
For example, your lay client may feel that they have been unfairly taken advantage of by an elder sibling who has bullied them since childhood. As a victim of bullying, they may harbour a deep-seated feeling of ‘injustice’, which is empowering them to retaliate through litigation, and thereby to obtain justice/redress whilst also inflicting pain.
A MA needs to be aware of and understand the inter-personal dynamics which underly the dispute on both sides.
A prudent and diligent Mediation Advocate should explain to his lay client that there is always an unquantifiable element of risk in any trust/estate litigation for all parties involved.
This is what a judge is also likely to say to both parties in open court at the end of the first case management conference following issue and service of the claim form, i.e. to knock some common sense into the parties’ heads before it is too late, and each side has become so heavily invested in litigation through the incurrence of high costs, that they decide they need to win in litigation. In other words, before the litigation juggernaut has gathered so much momentum that is has in effect become unstoppable.
Since ‘realism’e. the acknowledgment by each side in a dispute, of the existence of litigation risk for both sides, is in the experience of the author, what eventually opens the door to settlement in Mediation, i.e. by bringing about a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration’, M will at an early stage, invite each P to discuss this with their MA, in order to calculate their own price for doing a deal on the day.
M may raise this during a pre-Mediation Day Zoom call separately with each P with their MA in attendance.
M might say something along the lines of:

‘As your legal advisors will no doubt have explained, if this case does not settle on the Mediation Day, as there is never any 100% certainty about the outcome in any litigation, then at the end of a trial, one of you, is going to end up having to pay a very high price! That is because there is always an unquantifiable element of risk in any trust/estate litigation for all parties involved.’

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.

(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?
If parties engage in Mediation early and ‘do a deal’, then they avoid the incurrence of trial preparation and trial costs.
So, say the Mediation process costs each party £2.5K in Mediator fees plus £5K in solicitors costs, then the mediation process costs amount to £7.5K/party in total.
Now, if you assume for the sake of argument, that in a contentious probate trial, depending of course upon the issues involved, that costs incurred by each party amount to £100K (and the costs each party actually incurs in an estate dispute is often far in excess of that amount), then £7.5K as a percentage of £100K is 7.5%.
Thus avoidable ‘direct’ production costs amount to £92.5K for each party.
That figure does not include the unquantifiable and irrecoverable ‘indirect’ costs of: (i) loss of time (i.e. loss of the ‘time-value’ of money); (ii) disruption to your life; and (iii) personal stress and its impact upon your family, your health and your quality of life, i.e. anxiety and chronic sleep deprivation, which can result in clinical depression.
Whilst this example is arithmetically simplistic, when you compare the cost-effectiveness of Mediation as a process with Litigation by analogy to the ‘Pareto Principle’ / ‘80:20 rule’, then it is self-evident, that valuable time and money can be saved by entering into mediation early, instead of marching to war, which may possibly end in mutual self-destruction.
Put another way – if you think of Mediation as being a ‘time planning exercise’, then on the arithmetic above, it can generate 92.5% more free/extra time in which to live a happy and healthy life, when compared with litigation, whilst at the same time saving you 92.5% of the financial cost of resolving a bitter and divisive inter-family dispute.
This holds for both parties in the dispute. So, instead of a ‘double whammy!‘, the net outcome is a double benefit.
That is because you have maximised your net output (actual ‘gains’) by minimising your input.(potential ‘losses’ – i.e. time and money’).

SLIDE 4 – Hidden value

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.
Put another way – a ‘collaborative’ negotiating strategy is always more profitable than a ‘competitive’ negotiating strategy. In the Mediation of a probate dispute synergy can take many different forms.
It of course includes:

(a) Preserving the capital value of an estate, by avoiding the incurrence of costs – which is why Mediation should be entered into before significant legal costs are incurred.

(b) Creative expansion of the estate pie through a tax-efficient post-death restructuring of estate assets, i.e. to maximise any available IHT exemptions and reliefs within the available time window – which is another reason why Mediation should be entered into early, otherwise the opportunity may be lost forever.

Thus, a Mediation Advocate needs to be able to spot an estate planning opportunity when he sees one, and then to take expert advice from e.g. a CTA.
The ‘interdependence’ dynamic transforms competitors into partners who focus on the problem and not on the people and who thereby, are able to turn a challenge into an opportunity for mutual gain. This requires the participants and their legal advisors to work with rather than against the Mediator, and to prepare in advance to explore the existence of common ground which could potentially ‘creatively’ expand the estate pie.

SLIDE 5 – Deal-making Zone (‘DMZ’)

Mediation is about ‘doing a deal.’
Therefore, in order to prepare, each P must calculate and decide the ‘price of doing a deal’.
The decision will be influenced by each P’s analysis of litigation risks and irrecoverable costs.
Mediation works best where instead of rehearsing their case, participants invest in the process by preparing ‘to do a deal’ by developing a ‘settlement strategy.’
Therefore, sufficiently in advance of the mediation day, each P needs to think about:

(a) The potential settlement zone.

(b) The known or estimated gap between what each participant wants.

(d) How to close the gap and come away with a win/win/(win) solution, compared to the costs and risks of litigation and proceeding to trial.

It is always better to be prepared to advance to a known position, than to retreat into the unknown.
So, the science of preparation is the development of a ‘settlement range’ based upon:

(a) A realistic legal risk analysis.

(b) An accurate commercial analysis.

Then, a concrete opening offer can be made.
In the experience of the author, this requires a white-board/flip-chart for sketching out the P’s respective expectations in order to plot and discover your lay client’s potential ‘settlement range’ between:

(a) the maximum net capital value of his/her claim; and

(b) his BATNA (‘best alternative to a negotiated agreement’ – which in litigation is proceeding to trial, i.e. the amount below which he will walk away from the table).

Irrespective of the fact specific legal merits of a dispute, the settlement of a Contentious Probate Dispute invariably involves a trade-off between ten inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each P’s BATNA.
The Deal Making Zone (‘DMZ’) exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:

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

(b) Common Ground [‘CG’].

P1 – 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.

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

In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives.
Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.

SLIDE 6 – Offers

At some point, one of the P’s will need to start up the mediation engine by making an offer.
The business of ‘doing a deal’ can then get underway.
In practice, there are only three types of opening offer a participant at a mediation can make:

(a) 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.

(b) 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.

(c) 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 a participant 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 participants, the mediator can help them to narrow and eventually close the gap.
The making of an offer is a matter of timing.
In terms of what they consist of, i.e. structure & composition, there are 2 forms of offer:

(a) Simple (consisting of one element), i.e. a ‘Global Offer’.

(b) Complex (consisting of more than one element, e.g. an asset/interest in property plus cash/investments).

In order to arrive at a realistic ‘global’ figure (including costs) before making an offer/counter-offer, each P needs to break the claim down into its primary elements.
In formulating a complex offer, where for example an estate/trust fund is comprised of only two assets: ‘A’ and ‘B’, and P.1 is willing to settle for A and P.2 for B, then calculating the difference in value arising from the asymmetry between:

(a) the value of each party’s respective claims on the estate/trust assets as a whole i.e. A + B);

(b) the individual market values of A and B; and

may reveal that the difference between the value at which P.1 and P.2 will settle – the ‘Zone of Difference’ (’Z’), is mathematically smaller than the P’s had previously thought.

In other words, that a symmetrical BATNA could = settlement at the mid-point.
The challenge in reducing the size of the gap is to make adjustments.
In other words, throughout the mediation process, each P needs to re-evaluate the calculus underlying their BATNA.
A simple technique is to compare the Zone of Difference (‘Z’), as a crunched number, with the potential costs of litigation (‘C’) on:
The standard basis if P wins i.e. because P would usually fail to recover around 1/3 of their actual costs (which e.g. in a trial costing around £150K each = a loss of £50K).
Court fees.
Liability for own costs and other party’s costs (on the standard basis if P loses) (e.g. £250-£300K).
Chances of success which at the early stage of any proceedings, i.e. before disclosure has taken place and witness statements have been exchanged, is difficult to forecast with any accuracy, hence a conservative estimate is unlikely to be greater than 60% to 70% on either side.
Agreeing a fair and sensible split of estate/trust assets that avoids the ongoing and increasingly large risk of C either:

(a) exhausting the available value (including hidden value) of A and B; or

(b) the risk of either or both P.1 and P.2 ending up being in negative equity,

requires pragmatism, as in the long term ‘less can mean more’ if litigation is avoided/terminated.

To arrive at the end destination requires effective preparation, patience, flexibility, and flow.

SLIDE 7 – Negotiation mindset

1^st principle – ‘Do not have an argument with anyone about anything!’

This is a waste of time, because you cannot win an argument in Mediation as the process is not a trial.
Arguments lead to further entrenchment of positions.
Avoid the acute angle.
Never tell MA.2/P.2 that they are wrong.
A misunderstanding is never ended by an argument, but by tact, diplomacy, conciliation, and a sympathetic desire to see the other person’s point of view. In other words, M./P.1 cannot get M.2/P.2 to agree by telling them that they are wrong.
This will have the opposite effect, because M.1/P.1 will thereby have insulted the intelligence, pride, ego and self-esteem of MA.2/P.2.
That, it is counterproductive.
Always allow your opponent to save face!
Never place your opponent in the wrong.
If you give someone a fine reputation to live up to, it is possible that they may try not to disappoint you.
So treat people gently, with honesty, respect and sincerity, as they may reciprocate.
Always make M.2/P.2 feel happy about doing what you suggest.
Do not back them into a corner.
Instead, try to win them over gently and tactfully to your way of thinking.
If you are going to prove anything, do not let them know it.
Be subtle and adroit, so that nobody feels that they have been manipulated.
Instead of trying to prove, try to find the facts, i.e. be forensic.
Be aware that:

(a) People continue to believe what they have become accustomed to accepting as true.

(b) The resentment aroused when doubt is cast on their assumptions leads them to seek a justification for carrying on with those beliefs.

(c) Their reasoning becomes finding arguments for adhering to their beliefs. So, refrain from direct contradiction of the sentiments of others and from positive assertion of your own.

(d) Instead of contradicting M.2/P.2, show some absurdity in a proposition, i.e. distinguish it in the present situation from the situation in which it would logically correct.

(e) Propose your opinions in a modest way.

(f) This leads to increased receptivity and decreased contradiction.

2^nd Principle – Do not retaliate i.e. react to any provocation

Retaliation will lead to ever-worsening behaviour in an adversarial relationship.
There are two reasons why this is so:

(a) A party in dispute (P.1) is better off pursuing an ‘unconditionally constructive’ relationship with their opponent (‘P.2’), whether or not P.2 reciprocates, because ‘relationship issues’ do not fit the ‘Prisoner’s Dilemma’ model in ‘Game Theory.’

(See further: Poundstone, William (1993) Prisoner’s Dilemma: John Von Neumann, Game Theory, and the Puzzle of the Bomb, Anchor Books; Wisdom University (2023) The Art Of Game Theory: How To Win Life’s Ultimate Payoffs Through The Craft Of Prediction, Influence, And Empathetic Strategy (Navigate The Labyrinth Of Decision Complexity); and Fisher, Roger and Scott Brown (1988) Getting Together – Building Relationships, Penguin Books).

(b) So, the more P.1. (i.e. as the ‘adult in the room’) works to understand P.2, the more P.1 can anticipate P.2’s moves, even if hostile.

If P.1 pursues a ‘strategy of attrition’ against P.2 in litigation, then not only is this likely to later bite P.1 in costs, i.e. resulting in only a ‘pyrrhic victory’ if he wins, but it will also lead to an escalation of costs on both sides.

That is because if P.2 counter-retaliates, ‘partisan bias’ will cause P.1 to evaluate P.2’s behaviour as being disproportionate and worse than his own.

Since P.1 is likely to interpret P.2’s behaviour as worse than P.2 intended, P.1 will reciprocate with behaviour, that in costs, is even worse, i.e. to up the ante, as in a game of poker.

(See further, Lubert, Steven (2006) Lawyers’ Poker – 52 Lessons That Lawyers Can Learn From Card Players). This behaviour leads to a downward spiral of both substantive actions and reactions in what is the litigation equivalent of ‘escalation dominance’ in war, until no nobody is left standing.

Instead, P.1 can pursue an ‘unconditional strategy’, without risk. As Fisher and Brown wisely observe on p.202 of their book (see above), ‘if you are acting in ways that injure your own competence, there is no reason for me to do the same. Two heads are better than one, but one is better than none.’
The author’s mantra for maintaining a clear focus is:

(a) 1^st do not react.

(b) 2^nd pause.

See also, ‘Adopt an unconditionally constructive approach to your opponent – treat him as a partner,’ below.

Thus, how you conduct yourself as a Mediation Advocate will determine whether the dispute will de-escalate and ultimately be resolved, or will escalate, and result in a trial, at great cost and risk to all parties involved.
That is a big responsibility for all of the professionals involved in a Mediation.
Counter-intuitively, it is also presents them with a shared opportunity to deliver an outcome that is acceptable and satisfactory to the parties in dispute.

SLIDE 8 – Negotiation strategy

1^st Principle – Build a working relationship with M & your opponent from the outset

The foundation of effective Mediation Advocacy is the establishment of a working relationship between the Mediation Advocates through the Mediator.
To be effective, a Mediation Advocate must work with M and not against him.

2^nd Principle – There is no such thing as a trivial detail

The smallest detail e.g. how your opponent actually speaks and appears ‘in person’ versus ‘on paper’, can reveal more about their needs, priorities, and constraints, than what is in a position statement and bundle.
So, from the start of the Mediation focus on the person and not the paperwork, which you should know inside out anyway.
Do not allow the smallest of details to pass you by, otherwise it may contain a signal that you miss.
This requires empathetic listening.

SLIDE 9 – Negotiation behaviour

1^st Principle – Do unto others as you would have them do unto you!

Begin the Mediation day in a friendly manner.
Adopt a soft-spoken, quiet, friendly approach.
Be polite and courteous, e.g. M.1/P.1 can suggest the use of first names.
If M.2./P.2 agree with M.1/P.1’s proposal, then M.1/P.1 have got M.2/P.2 to say ‘Yes!’ to a proposal.
Talk first about what you can agree upon.
Take your cue from M, who will usually begin by seeking to clarify certain facts about:

(a) The composition of the estate.

(b) The value of estate assets.

Emphasise that you are both striving for the same end, i.e. that the only difference between you is one of ‘method’ and not of ‘purpose’.
Encourage and allow the other person to do most of the talking.
Demonstrate tolerance and respect for M.2/P.2’s opinions.

(a) Appeal to common sense and reason.

(b) Get M.2/P.2 to say ‘Yes’ as soon as possible.

(d) Use the ‘Socratic Method’ to:

(i) Ask questions which your opponent would have to agree with.

(ii) Keep on winning admission after admission.

(iii) Keep on asking questions until finally without realising it, your opponent embraces a conclusion that he would otherwise have rejected.

In a trust/estate dispute the parties in dispute, the P’s often loathe each other and refuse to meet face to face.
That is OK because if they did, in all likelihood tempers would be inflamed and their respective positions would become even more polarised and entrenched.
However, this does not mean that the P’s MA’s should not meet face to face early on in the process. In a Zoom Mediation, M may set up a ‘Coffee Room’ (‘CR).
The CR is a private room in which the MA’s can meet and speak openly to each other, thereby establishing a working relationship which eventually engenders trust through mutual professional respect and
So, toward the end of their 1st/2nd private session with M, i.e. after M has completed the ‘house-keeping’ and initial exploratory ‘getting to know you’ stage of the Mediation process, a MA (‘MA.1’) can be proactive and ask M on his behalf to invite the other MA (‘MA.2’), to meet with them in an initial CR meeting, so that the MA’s can introduce themselves to each other.
If MA.2 agrees, then, MA.1 can seize the initiative in the 1st CR meeting to switch the dynamic between them from ‘confrontation’ to ‘collaboration’, e.g. by saying something along the following lines to MA.2:‘Thank you for meeting with us today.
I will be corrected if I am wrong, but what I think you say about the facts and the law is … [i.e. to demonstrate to MA.2 that P.2’s arguments have been heard & understood – see ‘Empathetic listening’ below].
It is not my job to persuade you that your arguments will not succeed at trial.
As you know we say that we will succeed.
I am not interested in having an argument with you about whose view is right.
I suggest that litigation is not going to be a great outcome for either you or for my client.
The risks are … [ ].
I am here because I believe that we can reach a principled and fair deal that is not only good for my client but also better for your client.
I hope that you will work with me to explore how we can achieve this today.’
If M can then seize the moment to facilitate an acknowledgment on both sides that – ‘there is always an unquantifiable element of risk in all litigation for all parties involved’, then M can steer the P’s away from defending their positions/‘wishful thinking’, and toward ‘constructive problem solving’.
M can thereby bring about a paradigm shift in the P’s/MA’s approach to the resolution of the dispute.
Subsequently each MA, in the presence of M, can take instructions from their lay client about how to switch the focus away from the ‘people’ and toward the ‘commercial problem’ which divides them, i.e. distribution of the estate assets.
Once the proverbial ‘penny has dropped’ on all sides about the existence of ‘unquantifiable litigation risk’, then M can help the P’s to move on by facilitating an exchange of proposals, thereby bringing about a narrowing of the gap between their positions.
This is the moment when M can say privately to each P/MA or to both MA’s in a CR meeting:‘In practice, there are only 3 types of opening offer a P can make …’ – see ‘Slide 6 – Offers’, above.

2^nd Principle – Adopt an unconditionally constructive approach to your opponent – treat him as a partner

In their book, ‘Getting Together – Building Relationships As We Negotiate’ (1988), Roger Fisher and Scott Brown advocate an approach which they call an ‘Unconditionally Constructive Strategy.’
They argue that in any relationship we want to be able to take steps that both:

(a) improve our ability to work together; and

(b) advance our substantive interests.

The strategy, which is counter-intuitive, consists of six ‘guidelines’:

(i) ‘Rationality’ – Even if your opponent is acting emotionally, balance emotions with reason.

(ii) ‘Understanding’ – Try to understand your opponent, even if he misunderstands you.

(iii) ‘Communication’ – Even if your opponent is not listening to you, enquire, consult and listen to him.

(iv) ‘Reliability’ – Even if your opponent is trying to deceive you, neither trust nor deceive him, instead be reliable, as integrity builds trust and confidence.

(v) ‘Non-coercive modes of influence’ – Even if your opponent is trying to coerce you, neither yield to coercion, nor try to coerce him. Instead, be open to persuasion, and try to persuade him, i.e. disarm him. Then you can both enter into a constructive dialogue, working in effect working ‘side by side’, & a technique which helps is to actually sit at right-angles to each other, i.e. as opposed to across a table from each other. That may be the catalyst of a working relationship between the MA’s which can produce a settlement.

(vi) ‘Acceptance’ – Even if your opponent rejects you and your concerns as being worthy of his consideration, accept him as being worth dealing with and learning from.

This requires a leap of faith.
Adopting this approach involves risks.
So, a Mediation Advocate needs to be risk averse.
When and how to use this paradigm shifting strategy, is a matter of instinct, judgement, and timing. It cannot be taught. However, it can be practised.
This negotiation behaviour strategy is closely linked with the 4^th principle I will discuss – ‘Principle-Centred Dialogue.’

3^rd Principle – Empathetic communication – Listen to understand in order to be understood

The only way to get someone to do something is to make the other person want to do it.
Remember that when dealing with people as opposed to machines, you are not dealing with creatures of logic, but with creatures of emotion, bristling with prejudices and motivated by pride and vanity.
Instead of condemning your opponent, what you need to do is to try and understand them.
Then, you can understand why they have behaved as they have. MA.1/P.1 must put themselves into the shoes of MA.2/P.2, in order to see things as they do, i.e. each MA must understand the ‘opposing’ point of view through the lens of their opponent.
Since only unsatisfied needs can motivate, lower-level needs must be satisfied before higher-level needs can become motivators, see further Maslow, Abraham H. (2022) A Theory of Human Motivation,Wilder Publications.
In the hierarchy of human needs, next to ‘physical survival’, the greatest need of a human being is ‘psychological survival’, i.e. to be understood, affirmed, validated, appreciated, and treated with respect and dignity.

‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you reply.’

(The late Professor Roger Fisher in a two hour conversation with me at Harvard Law School during a research visit as a Scholar from King’s College London to Harvard University in April 2002).

When you listen to a person with empathy, you give them ‘psychological oxygen’.
By affirming their vital psychological need for understanding and acknowledgment, you can then move forward, by becoming partners in jointly solving a shared problem.
When you listen with empathy you open yourself up to being influenced.
Being open to influence is the key to influencing others.
Just as you can now see a problem through your opponent’s eyes, so can he see the problem through your eyes.
This opens the door to the creation of synergy by acknowledging, exploring and exploiting interdependence, see the ‘Interdependence paradigm’
Thus, when parties in dispute sincerely and deeply understand each other, then they can open a hidden door to creative settlement in mediation.
That is because their ‘differences’ have been transformed from being obstacles to communication and progress, into ‘stepping-stones’ to synergy.
In other words, the MA’s can help their lay clients to set themselves free from the past, by working together to bring about a better future.

4^th Principle – 3 Levels of listening

There are 3 levels of listening, which are discussed in ‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), at pages 99, 100 and 102. The following is kindly reproduced here with the permission of the Society of Mediators.
The three levels of listening are:

(a) ‘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.
Talking about you with ‘I’ and ‘Me.’

(b) 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, skilful 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.

(i) Emotion.

(ii) 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:

(a) builds trust and respect,

(b) enables the disputants to release their emotions,

(d) encourages the surfacing of information, and

(e) 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).

5th Principle– ‘Initiate a principle-centred dialogue’

The essence of ‘Principle-Centred Dialogue ‘(‘PCD’) lies in remaining open to persuasion by reference to objective facts and principles.
Between themselves, the Mediation Advocates can establish a dialogue based upon reason.
This can transform ‘competitors’ into ‘colleagues’ who collaborate in trying to establish objective facts.
Thereby, confrontation between them is diffused.
So, the Mediation Advocacy strategy is to focus on interrogating objective facts.
You cannot convince another person to be open to principles and objective facts you suggest, until you have demonstrated that you are open to principles and objective facts they suggest.
PCD is a two way street.
That is why making each other open to correction and thus to persuasion, is a pillar of PCD.
The tools for engaging in PCD include:

(a) ‘Separate the people from the problem’.

(b) ‘Focus on interests and not on positions’.

(c) ‘Invent options for mutual gain’. Generate a variety of possibilities before deciding what to do. So, in a trust/estate dispute, a MA should learn to expand the ‘estate’ pie before dividing it’.

(d) ‘Insist on objective criteria’, i.e. insist that the result be based upon some objective standard’.

See further : Fisher, Roger and William Ury (1981) Getting to Yes, Arrow Books.

See also Ury, William (1991) Getting Past No – Negotiating In Difficult Situations, Bantam Books. In a nutshell the strategy advocated in this book is:

(a) ‘Go to the balcony’.

(b) ‘Step to their side’.

(d) ‘Build a golden bridge’.

(e) ‘Bring them to their senses and not to their knees’.

5^th Principle of Mediation Advocacy – ‘Think win-win-win!’

One of the key negotiation concepts and techniques discussed in William Ury’s book – ‘Possible’ (2024) Harper Business, 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.’

In a trust/estate dispute, a ‘win-win-win’ scenario is not only 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 may also include a noble shared family aim, e.g. survival and continuation of a family owned business.

7^th Principle – Bait the hook to suit the fish!

Your opponent must want to enter your DMZ.
While you cannot force him to go there, you can ‘attract’ him toward it, i.e. draw him into your DMZ.
So, when preparing for the Mediation Day, you – i.e. ‘MA.1’, should always ask yourself the rhetorical question – ‘How can I persuade MA.2/P.2 to walk toward and eventually into my lay client’s i.e. P.1’s deal-making zone – i.e. want to go there?’
In order to lure M.2/P.2 into their DMZ, MA.1/P.1 must – ‘bait the hook to suit the fish!’
This requires rigorous preparation, subtlety, patience, and persuasion.
What MA.1/P.1 is in effect doing, is manipulating MA.2/ P.2 without either of them realising it.
That is because they think that a suggestion made by MA.1/P.1 was their own idea.
Nobody likes to feel that they are being told what to do.
People prefer to feel that they are acting on their own ideas and initiative.
The gap between the P’s polarised positions will eventually be closed by discovering and agreeing upon common ground.
So, the art of ‘baiting the hook to suit the fish‘, is to attract MA.1/P.2 toward and into your DMZ, thereby causing them to move further away from their own DMZ.
To accomplish this outcome, MA.1/P.1 will make suggestions whilst allowing MA.2/P.2 to arrive at the same conclusion for themselves.
Thus, when MA.1/P.1 make a suggestion, instead of making MA.2/P.2 think that it is M.1/P.1’s idea, M.1/P.1 will allow MA.2/P.2 to ‘cook and stir’ the idea amongst themselves.
Then of their own volition, M.2/P.2 will advocate in support of the idea, because they will feel that they own it.

8th Principle – Isolate the constraint

If you can isolate, agree and understand the ‘constraint’, i.e. the road-block to agreement, then in the author’s experience as a Mediation Advocate, quite often the solution presents itself to you almost instantly in a flash, i.e. a ‘light-bulb’
Very often the answer is obvious, and has been staring you and your lay client right in the face all the time, i.e. it has been hidden in plain sight.
However, for the brain to process the dynamics driving the impasse, and 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 plus imagination.
To probe as a MA, you may ask:
‘Why is this important to you?’
‘Why is this a problem for you?’
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.
This requires ‘deep’ and ‘intuitive’ listening skills, ’emotional intelligence’, and ‘clear thinking’.
So, MA.1/P.1 need to help M.A2/P.2 to find a way around or through the apparent ‘road-block’, i.e. to ‘navigate’, in a way which in their mind ‘works for them’.
In other words, as a Mediation Advocate you have to help your counterpart and his lay client to work out a solution for themselves.

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:

(a) Follow M’s ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative i.e. ‘third-way’ to litigation, by entering into a constructive exploration of the existence of common-ground, which first requires M to enquire about your lay client’s wishes, needs, priorities, and reasons.

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

(c) 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.

(d) 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’.

(e) So, the MA’s must work with M to bring about this paradigm shift in thinking.

(f) This requires the development by each P of a ‘settlement range’ (‘SA’) ahead of the Mediation Day.

(g) The extent to which each P’s SA overlaps with the SA of the other P/P’s = common ground (‘CG’).

(h) In a Trust/Estate dispute CG may be capable of expansion before division and distribution.

(i) Thus, before the Mediation Day each MA must have a candid discussion with their lay client i.e. P, about how much is ‘enough’, i.e. about what is the ‘price of doing a deal on the day?’

(j) That conversation should be prefaced by reminding their lay client about what they advised during their very first conference, i.e. that litigation always involves an unquantifiable element of litigation risk for all parties involved.

(k) So, the commercial question for their lay client to answer for themselves is – ‘at what point is the candle no longer worth the flame to me?’

(l) Then each P can make an informed and calibrated commercial decision about when ‘to deal’ and ‘when walk away from the table’, before they come to the table and engage as a ‘player’, in the ‘Mediation Game’.

As Peter O’Toole, who plays T.E. Lawrence in the film Lawrence of Arabia, says to Omar Sharif after they have successfully crossed the Nefud Desert – ‘Nothing is written!’
What he means is that nothing is impossible!
As he explains before riding off into the desert on a camel – ‘Aqaba is over there. It is only a matter of going!’
In Mediation this = ‘It is only a matter of talking to each other!’
At the start of the Mediation there is a unique opportunity for the P’s and MA’s to talk to each other though M about their willingness to enter & cross the proverbial desert together, because the prize which potentially awaits them is attainment of their respective strategic objectives, as they may find when they ride ‘side by side’, that they are not in fact as far apart as they had previously thought.
In the film the prize on the other side of the desert is Aqaba.
However, when Lawrence breaks into the safe of the Treasury at Aqaba he finds no gold. In Mediation P’s do not end up with everything they want.
Nevertheless, by crossing the Nefud & seizing Aqaba, Lawrence & his followers from rival tribes achieve a win/win outcome by ejecting the occupier.
That is the reward they each reap, for taking a ‘leap of faith’.
In an estate dispute, the joint-challenge /prize, is the division and distribution of the estate.
If both MA’s and their P’s can see the prize which potentially awaits them at the end of the Mediation Process, and are each willing to take a leap of faith, i.e. by trusting in the Mediation Process, then the outcome of their joint endeavour will be determined by what each is willing to sacrifice in order to share the prize on terms that are commercially ‘enough’ for all of them.
So, M like Lawrence, needs to point to the potential prize awaiting the MA’s and P’s at the end of the journey through the wilderness, in order to bring about a paradigm shift from their being ‘rivals’ to becoming ’partners’ in a common venture.
M can then show them the way to Aqaba, so that they can ride ‘side by side’, toward a shared prize.
This can only happen if both MA’s & P’s are willing to trust not only the Mediator, i.e. as their ‘guide’, but also the ‘Mediation Process’.
So, each MA & P must place their trust in M, as they are placing their fate that day into his hands.
Unlike riding off in the middle of the night into the desert on a camel, a P in Mediation can always exit at any time, i.e. by deciding to end the Mediation Process & instead proceed to trial.
However, in every successful Mediation, there is a commercial ‘tipping-point’ at which the P’s become more invested in settlement than in proceeding to trial.
That happens after they have crossed the ‘Sun’s anvil’ in the middle of the proverbial Nefud Desert & can almost taste success.
That is what drives them on.
So, success at Mediation depends as much upon the skills of the Mediation Advocates as it does upon the Mediator.

My next book

Title: ‘Mediation Advocacy in International Cultural Heritage Disputes.’

Start date: 1st March 2025.

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My Essay – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

(Written and submitted for the Diploma in Art Law course which I undertook at the Institute of Art & Law in London between 2020 and 2023. The Diploma was awarded on 13 December 2023).

Introduction

In this essay the author argues that:

Cultural Heritage is part of our shared humanity.
Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.
The duty of a state to protect Cultural Heritage (‘CH’) is quintessentially a fiduciary duty under International Humanitarian Law (‘IHL‘). The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.
Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity.
Destruction of CH is not only a war crime under IHL it can also be a political mistake – that is the paradox of Machiavelli’s Principle of Survival (‘MPS’).

If the destruction of CH has the potential to politically destabilise the aggressor (‘H’ i.e. a Hegemon), then it follows that surrounding states in the region (‘SIR’s’) also have a national security interest in the survival of H.
Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement.
This is where a non-partisan Non-State Actor (‘NSA’) e.g. an NGO, can play an instrumental diplomatic and mediation role.

Strategic importance of Cultural Heritage

In the frequently quoted words of the 1954 Hague Convention, cultural property is ‘the cultural heritage of all mankind.’^[i] In other words, Cultural Heritage it is part of our shared humanity. Therefore, we all have a common interest in preserving and protecting cultural property everywhere.

Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.^[ii]

‘Annihilation of cultural heritage is gradually evolving into an issue of peace and security in the 21^st century. Destructive ideologies are not new in history, as the UNESCO Strategy, entitled ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’, acknowledges; but today “threats to cultural heritage in the event of armed conflict result from intentional destruction, collateral damage, forced neglect, as well as from organised looting and illicit trafficking of cultural objects … [on] an unprecedented scale.”^[iii] Intentional destruction of cultural heritage by extremist non-State actors, such as the Taliban in Afghanistan, the so-called Islamic state (Islamic State of Iraq and the Levant, or ISIL, or Daesh) in Syria, Iraq, and Libya, or Boko Haram in Nigeria, may be seen as part of “ideological warfare against cultural property.”^[iv] …’^[v]

Cultural identity is considered to part of human dignity. It is linked to human rights because cultural heritage is of crucial importance to individuals and communities as part of their identity. As cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life’ (Francioni & Vrdoljak‘, p 77).

Duty to protect

The author’s thesis, is that when ‘Art’ (‘A’) is of cultural significance, i.e. is recognised as being ‘Cultural Heritage’ (‘CH’), it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor (‘P’) who owns A that is also CH, is also a custodian of the CH. In which case, duties attach to possession, e.g. a duty to preserve and protect the cultural property (‘DP). DP also applies to an underwater archaeological site, because as the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’. If P is a state, these duties extend to protecting the CH in the event of war. Therefore, DP is quintessentially a fiduciary duty under IHL. The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.^[vi] This also highlights the existence of a potential intersection between: (i) ‘principles of humanity’ under IHL; and (ii) the existence of ‘fiduciary duties’ on state actors under foundational principles of international law – see Criddle & Fox-Decent (2009).

The paradox of Machiavelli’s Principle of Survival

In the 16th century, the strategist and political philosopher Niccolò Machiavelli wrote that ‘he who becomes a master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always [been] the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget.’ (‘The Prince’, Chapter V – ‘Concerning The Way To Govern Cities Or Principalities Which Lived Under Their Own Laws Before They Were Annexed.’)(1532). In other words, if you really want to destroy a people, its pride, it self esteem, and its sense of belonging to its own cultural identity, you need to destroy its cultural heritage, otherwise you will not be able to dominate. (‘Machiavelli’s principle of survival’) [‘MPS’].

‘The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).

Analysing the psychology of an invasion through the hard geo-political lens of ‘Offensive Realism’ (see Mearsheimer 2014), if an invading sovereign state is a hegemon or an aspiring hegemon) (‘H’), and the political logic underlying invasion is survival, then since a hegemon must dominate in order to survive, there is a paradox, because PA requires the destruction of CH. In other words, to achieve its political objectives, H must destroy part of itself.

Therefore, invasion may be a political mistake ^[vii]. The miscalculation is that instead of H becoming stronger it will actually weaken itself, because by invading a state with a shared cultural heritage, H will to an extent destroy its own cultural identity. If that happens then over time, institutionally H may become unstable and ungovernable, resulting ultimately in the political break-up of H. In other words, institutionally, the destruction of cultural heritage by H is an act of political self-destruction.

The existential question for H then becomes, how do they end the war without ending up being in a worse position than they were in before it, in order to:

(i) preserve the status quo within H itself; and

(ii) restore the balance of power (i.e. the status quo ante) between H and other hegemons and aspiring hegemons in the region/world, including H‘s political allies – who may pursue their own self-interest at the expense of H, if H becomes politically unstable, i.e. by annexing territory that H can no longer politically control because its military capability and economy have been weakened.

If the author is right, then the calculus of risk by H is a dynamic that can influence a decision by H to end a war by positively engaging in mediation.

Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity

‘The destruction of heritage, and prohibition of cultural behaviours are used by certain conflict actors as “shaping operations”, where violence against the “Other” becomes normalised as communities, either incrementally or at once, lose their property, freedoms, and humanity. Culture is a shared set of values, ideas, and behaviours that enable a social group to function and survive. Cultural heritage maintains identity, social cohesion, and a sense of security through intangible practices, including rituals, music, language and skills, and tangible property such as artefacts, archaeology and places. Roosevelt’s four freedoms link cultural behaviour – to freedom from fear and want. Targeting cultural heritage is an act of power that legitimises one group while diminishing others and is often a precursor for the most offensive form of cultural destruction: genocide.’[viii]

Hence, there is an unspoken connection between:

the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
ethnic cleansing; and
genocide.

The intentional destruction of cultural heritage is an offence against humanity as a whole. ‘[It] seems to have been forgotten that even wars have limits. The so-called “Hague-Law”, which regulates the use of means and methods of warfare so as to mitigate, as much as possible, the “calamities of war”, is the oldest branch of IHL. It’s basic tenet can be summarised in three fundamental maxims, namely: (i) that “the only legitimate object which states should endeavour to accomplish during war is to weaken military forces of the enemy”; and that therefore, in pursuing this aim, both (ii) “the right of the parties to the conflict to choose methods or means of warfare is not unlimited”; and (iii) “[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.” …’ (Saul, Ben & Dapo Akande (2020) The Oxford Guide To International Humanitarian Law, Oxford University Press.(‘ p.235). Article II.2 of the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (17 October 2003) states:

‘For the purposes of this Declaration “intentional destruction” means an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.’

In other words, the intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity and the dictates of public conscience.

Principles of Humanity

Whether IHL can bring warring P‘s together in an ‘offensive realism’ paradigm depends upon the answer to the following questions:

Do universal ethical values exist under IHL as ‘Principles of Humanity’ [‘principles’]^[ix].
What are these principles.
In the real world, could these principles be used in mediation as potential building blocks of a peace process, protocol, and agreement – i.e. are they a sufficient basis for starting a ‘difficult’ conversation that can eventually transform attitudes and each P’s Political Doctrine [‘PD’], resulting in the negotiation of a sustainable and enduring Peace Treaty.

The philosophical pillars of universal Principles of Humanity under IHL, are two classical doctrines:

(i) obligations ‘erga omnes’; and

(ii) ‘jus cogens’.

Although it can be said that jus cogens rules consist of rules stipulating erga omnes obligations, it is not axiomatic that erga omnes obligations constitute jus cogens. While there is an overlap between: (i) obligations erga omnes; and (ii) jus cogens rules, the IHL principles and norms that can be derived from the nexus between these doctrines in relation to Cultural Heritage suffer from a lack of scholarly formulation, definition and classification.

Therefore the answer to the first question is yes. However because the formulation of these principles and their philosophical basis under IHL, requires further research ^[x], the answer to the second question is almost a blank canvass.The answer to the third question depends upon whether these principles align with H’s political interest in the preservation of CH, as destruction of CH is ultimately an act on institutional self-destruction. So, in theory, because, by definition preservation of CG is common ground, the door is open for a form of Mediation to take place through Cultural Heritage Diplomacy.

Conclusion

There is a tension between the:
(i) common ground represented by a shared cultural heritage, including a set of ethical, philosophical and religious values/beliefs; and
(ii) political ambitions and objectives (‘PA’) that drive military strategy in war.

A logical corollary of MPS, is that where an invading state and an invaded state share a common cultural heritage i.e. CH, that the invader must destroy part of itself in order to achieve its political objective(s), i.e. its PA.

Arguably, Principles of Humanity under IHL are a powerful diplomatic tool in mediating a peace process and agreement, because violation, i.e. the impact of war on CH, may adversely sway public opinion within H and weaken support for the war.

When the political strategy of H is to create a failed state i.e., where it has failed in its primary objective to turn the invaded state into a client state, then the preservation and protection of cultural heritage in the invaded state, is also arguably elevated to the level of being a threat to the national security of any other state in the region (‘SIR’), because there is a risk of a failed state emerging within SIR‘s geo-political sphere of influence.

If the destruction of CH has the potential to politically destabilise H, then it follows that SIR also has a national security interest in the survival of H. Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement. This is where a non-partisan NSA e.g. an NGO, can play an instrumental diplomatic and mediation role.^[xi]

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Weatherall, Thomas (2015) Jus Cogens – International Law and Social Contract, Cambridge University Press. (‘Weatherall’).

[i] This has a philosophical root in the western liberal theory of cultural property internationalism ‘A related claim is a critique of the nationalist position, namely that cultural heritage is a fluid concept and hence claims to total sovereignty are arbitrary. The position is less that there is no national claim to territorial cultural property, but rather that a balance should be struck between sovereignty and shared access to what is viewed by the cultural property internationalists as a common cultural heritage of humanity. Support for these claims are likewise evident from Article 4 UNESCO 1970, which includes in the definition of “cultural heritage” both “cultural property which has been the subject of a freely agreed exchange,” and “cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.” These provisions seem to reflect an idea that cultural property can be attributed to a cultural heritage beyond the territory of its origin, and also acknowledges the value in protecting other states’ provision of access to cultural property of foreign origin.’ (Strother, p.358).

[ii] ‘Culture is [also] a key element of operational understanding. Operations of both the British and US militaries in Afghanistan and Iraq taught hard lessons: culture is critical. Culture is a driver and motivator of people. It is also a medium for communication and a means to achieve military effect. It can also shape and define the Information Environment. Culture, as a component of military planning is one of four key human factors that shape the operating environment. Put simply, culture determines how people interpret and orientate themselves to that environment.’ Clack & Dunkley, p.301 – An interview with Captain Mark Waring. These are the words of Captain Waring.

[iii] UNESCO General conference, ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict (2 November 2015) UNESCO doc 38/C/49. See also UNESCO General Conference, ‘Strategy for the Reinforcement of UNESCO’s action for the protection of culture and the promotion of Cultural Pluralism in the Event of Armed Conflict’ (24 October 2017) UNESCO doc 39/C/57, para 1.

[iv] Kirsten Schmalenbach, “ideological Warfare Against Cultural Property: UN Strategies and Dilemmas” 19 Max Planck YB UN L 1.

[v] Carstens & Elizabeth Varner, p.82.

[vi] Note also that ‘fiduciary principles play a prominent role in the international law of occupation. As one leading scholar has observed, the foundational principle upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power. Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a trustee who exercises only temporary managerial powers until the occupation ends. … An occupant also bears a variety of proscriptive fiduciary duties. It must respect unless absolutely prevented, the laws in force in the country. … Nor may an occupant confiscate private property, [or] destroy property without military necessity. … Moreover the occupant serves only as administrator and usufructuary of public buildings, [and] real estate … belonging to the hostile state, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct, avoiding wasteful or negligent destruction of the capital value … Contrary to the rules of good husbandry. … For centuries, international lawyers and statesmen have endorsed the principle that a state’s sovereign authority is held in trust for the benefit of its people.’ (Criddle, Miller & Sitkoff, pp.356 & 358-9).

[vii] In a proxy war, where a hegemon (‘H‘) is a liberal democracy acting in support of a strategic asset (‘SA’), aggression by SA in breach of IHL not only undermines the integrity of the international rules based order where a Nelsonian blind eye is turned to violation, it can also turn SA into a ‘liability’ which can sway public opinion in H, who demand that support for SA cease.

[viii] Clack & Dunkley, p.301 – An interview with Colonel Rosie Stone. These are the words of Colonel Stone.

[ix] Primary sources include:

Hague Convention II, Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900):-

‘Preamble …

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and requirements of the public conscience.’

Additional Protocol 1, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978):-

1(2) – In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’

International Criminal Tribunal for the former Yugoslavia – Prosecutor v. Kupreskic et al., (Judgment), Case No. IT-95-16-T, Trial Chamber (14 January 2000).

The following is an extract from Tsagourias & Morrison, pp43 & 44:

‘On the issue of humanity and how it assists in the interpretation of IHL, the Chamber held as follows:

More specifically, recourse might be had to the celebrated Martens Clause which, … Has by now become part of customary international law. True, this Clause may not be taken to mean that the ‘Principles of Humanity’ and the ‘Dictates of Public Conscience’ have been elevated to the rank of independent sources of international law, for this conclusion is belied by international practice. However, this clause enjoins, as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances, the scope and purport of the rule must be defined with reference to those principles and dictates.’

Danish Ministry of Defence, Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016, updated 2020), chapter 4:-

‘The principle of humanity expresses a fundamental prohibition against the infliction of suffering, injury, or destruction that is not actually necessary for the accomplishment of legitimate military purposes. The principle also implies the basic requirement of humane treatment. … There are three aspects to the principle of humanity. The first aspect concerns the fact that belligerents are limited in their use of means and methods of warfare. … The second aspect of the principle of humanity is the requirement that certain precautions – for instance, in the choice of means and methods – must be taken in connection with the planning and execution of attacks and in the defence against attacks. … The third aspect of the principle concerns a minimum standard for the humane treatment of any person who is held in the custody of the belligerent state.’

‘The key to understanding international jus cogenslies in a much neglected passage of The Doctrine Of Right, where Immanuel Kant discusses the innate right of humanity which all children may assert against their parents as citizens of the world. Drawing on Kant’s account of familial fiduciary relations, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to state power. An immanent feature of this state subject fiduciary relationship is that the state must comply with jus cogens.’ (Criddle & Fox-Decent (2009), pp.353 – 354 (Kant’s Model of Fiduciary Relations).

[x] ‘An additional consideration should be devoted, as well, to unpacking the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including such threshold concerns as standing, sovereign immunity, causes of action, compulsory jurisdiction, forums, and remedies. … Addressing these questions will be essential to determine the specific legal consequences that flow from a breach of jus cogens.’ (Criddle & Fox-Decent (2009)).

[xi] For example in mediating a ceasefire, in order to create a network of humanitarian corridors, i.e. by designating certain areas as ‘Cultural Heritage Safe Zones’, and then linking them up, so as to create a matrix, which in effect brings about a cessation of military operations throughout a conflict zone.