1. 7th Annual International Trusts Congress 2008
Mediation in Trust Disputes
Ian A Marsh
Familydr
Jury’s Great Russell Street, London
2 and 3 December 2008
Common theme today is RISK
Conflict risk is more manageable than most
Why – because it involves changing the one thing you really control – how you deal with stuff

2. 7th Annual International Trusts Congress, 3 December 2008
What is mediation (1)
"Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution." Source: CEDR
7th Annual International Trusts Congress, December 2008

3. What is mediation? (2) Mediation is a dialogue facilitated
by a neutral person
7th Annual International Trusts Congress, December 2008

4. 7th Annual International Trusts Congress, 3 December 2008
Why mediate?
Quicker and more cost effective than litigation
The parties are in control/no imposed solutions
Parties can devise solutions a court could not order
Allows parties to preserve/repair their relationships
Interest rather than rights focussed
7th Annual International Trusts Congress, December 2008

5. 7th Annual International Trusts Congress, 3 December 2008
What do mediators do?
Let people speak the unspeakable
Bridge the communications gap
Speak truth to power
7th Annual International Trusts Congress, December 2008

6. 7th Annual International Trusts Congress, 3 December 2008
Trustees in dispute
Trust disputes
Friendly, eg construction
Hostile, eg validity
Beneficiary disputes
Propriety of trustee (in)action
Third party disputes
Disputes with non-beneficiaries
Caught in the crossfire
7th Annual International Trusts Congress, December 2008

7. Trustees’ power to compromise
Under s15 Trustee Act 1925, trustees may:
compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, claim, or thing whatever relating to the trust; and
enter into, give, execute, and do such agreements, instruments … releases and other things as seem expedient, without responsibility for loss;
provided they discharge their duty of care in s1(1) TA 2000
NB breach if agree to exercise to settle claim for breach
7th Annual International Trusts Congress, December 2008

8. 7th Annual International Trusts Congress, 3 December 2008
Minors, unborns, etc
Who comes to the table?
Authority to bind
Dealing with conditional settlement
Trusts (Guernsey) Law 2007, s63
Breach only
Can bind all who are represented or had the opportunity to be heard
7th Annual International Trusts Congress, December 2008

9. 7th Annual International Trusts Congress, 3 December 2008
Promoting peace
Should trustees actively promote non-adversarial conflict resolution?
Who pays the piper …
7th Annual International Trusts Congress, December 2008

10. Contact Ian Marsh at familydr Central Court 25 Southampton Buildings London WC2A 1AL tel: +44 (0) fax: +44 (0)