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7th Annual International Trusts Congress 2008

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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)


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