Zoom Mediation & Estate Planning

To arrange a free pre-liminary zoom call to discuss your planning needs and objectives, and how I can help, please send and email to carl@ihtbar.com.

Mediation can be used as a structured life-time estate and business succession planning process, i.e. to avoid a dispute following the death of the head of the family/founder of a family company (i.e. the ‘Patriarch’).

This is the subject of an article about Mediation and Estate Planning that I have written for Taxation (Tolley), which will be published in two parts, in March 2022.

See also: Estate planning using a Family Investment Company – Carl Islam

Where participants and their professional advisors are located in different time zones, while some participants will be participating late into the night, or early in the morning, a Mediation conducted by Zoom may be particularly effective if the distance between participants has the advantage of avoiding face to face venting in a highly acrimonious situation, because the participants are not physically in the same room. In fact, they do not have to meet at all, either physically or virtually, as they can stay in their own Zoom break-out rooms throughout the process, which is not uncommon in the Mediation of highly emotive probate/ trust disputes.

Therefore, if an international business family does not know where to go, and how to start an inter-family discussion about how to put their house in order before a monumental event occurs (i.e., loss of capacity or death of the head of the family), then a pre-emptive process of Mediation can be used to create a safe space in which each key family member is empowered to:

(a)     voice their individual: needs; concerns; hopes; expectations; and priorities, to a non-partisan and beneficially disinterested person, who is bound by confidentiality and has the soft skills to talk to each of them, i.e., a Mediator who is also a TEP; and

(b)     speak through the Mediator, to a multi-disciplinary team of professional advisors around the world, appointed by the Family Office,

in order to jointly discuss, develop, and agree bespoke and innovative solutions to the problem, i.e., a holistic strategic plan and roadmap for practical implementation.

Where for example:

(a)     participants in a Mediation adopt the paradigm of a ‘store of value’ to perceive and re-configure the attributes and worth to each of them of a luxury asset; and

(b)     the wishes, needs, and priorities of each participant are asymmetrical,

then it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by re-structuring:

(i)      the legal and beneficial ownership;

(ii)     management and control;

(iii)    use; enjoyment; and

(iv)    commercial exploitation,

of the asset, to their mutual advantage.

Where Mediation, is used as a process for innovative and bespoke life-time estate and business succession planning, in the opinion of the author, a CTA should be appointed to prepare an Estate Planning Report (‘EPR’)  and a Business Succession Planning Report (‘BSPR’). In my opinion, the EPR and BSPR should be prepared:

(a)     after an inventory/schedule of the composition and value of the estate and family business has been prepared; and

(b)     before the Mediator proceeds to interview each family member:

(i)      to confirm their acceptance of the facts set out in the inventory/schedule, i.e., so that from the outset all participants in the process are singing off the same song-sheet; and

(ii)      about what they each; want; need; prioritise, and why.

In the case of an international family, their lawyers and tax advisors (i.e., appointed by the Family Office), can then engage with family members through a process of facilitated/mediated discussion, in order to jointly agree a holistic strategy and roadmap for practical implementation, that is approved by each family member. This may for example result in the drafting of a Family Constitution, and in the re-drafting of the Articles and Memorandum of Association of a family-owned company; a Shareholders’ Agreement; and of an International Trust Deed, which are no longer fit for purpose. In contrast to the Mediation of a dispute which will usually last between one and two days at the most, this process of dialogue, road-mapping, and agreement, will take months, and can be accelerated if the Mediator is assisted by a co-Mediator.

For the avoidance of doubt, as a Mediator, I am not a professional advisor. My function, is to facilitate the planning conversation and process. I do not provide legal, tax, and estate planning advice, or draft documents. Before making any commercial decision, each participant in Mediation, should obtain advice from their team of professional advisors.

I have been commissioned to write an article for Taxation (Tolley) for publication in June 2022 entitled, ‘Estate Planning using a Family Investment Company.’

See also my blogs:

Financial provision claim by adult child – Miles v. Shearer [2021] | Carl’s Wealth Planning Blog

Higgins v Morgan & Ors [2021] – 27.5% reasonable provision award included part of a CFA success fee | Carl’s Wealth Planning Blog

Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

How to expand the pie when settling a will dispute | Carl’s Wealth Planning Blog

Mediation in the Court of Protection | Carl’s Wealth Planning Blog

Mediation Strategies | Carl’s Wealth Planning Blog

Mediation of Will, Inheritance, Probate, and Trust disputes | Carl’s Wealth Planning Blog

Using transformative mediation as an estate planning process? | Carl’s Wealth Planning Blog

‘We are all in this together!’ | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog