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ADR and Trusts: An International Guide to Arbitration and Mediation of Trust Disputes

ADR and Trusts: An International Guide to Arbitration and Mediation of Trust Disputes

Author: Grant Jones; Peter Pexton
Publisher: Spiramus Press Ltd
ISBN: 9781907444586
Published In: January 2015
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 1,329.00

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Contents

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Settling trust disputes without litigation can save all parties legal costs and maintain confidentiality (reducing the risk of unwelcome publicity). ADR and Trusts is a development from the authors’ accredited mediation training course for the Society of Trust and Estate Practitioners (STEP).

Part A introduces the reader to the different forms of dispute resolution, and examines the differences between arbitration and mediation of trust and fiduciary disputes.

Part B examines 27 jurisdictions and how trust law and ADR operates in each of them. Each profile addresses: arbitration law and practice, trust law, the mandatory requirements for mediation and the enforcement of ADR awards.

Mediators, arbitrators, trust and estate planning practitioners, trust managers and anyone involved in trust disputes should all benefit from reading this book.

Foreword by Geoffrey A Shindler

A. Introduction to Dispute Resolution

Arbitration of Trust and Fiduciary Disputes

1.1 Introduction

1.2 The Advantages and Disadvantages of Trust Arbitration

1.3 The Conceptual Difficulty

1.4 Human Rights Issues

1.5 Trust Arbitration Cases

1.6 Jurisdictions with Statutorily Authorised Trust Arbitration Clauses

1.7 Laws Governing an Arbitration and their Impact upon Trust Situations

1.8 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York1958) (the ‘New York Convention’)

1.9 Convention on the Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 30th October 2007 (the ‘Euro Convention’)

1.10 Drafting Arbitration Clauses

1.11 Specific Trust Arbitration Clauses

1.12 Summary

Benefits of Mediation for Trust and Fiduciary Disputes

2.1 Avoiding Costs Orders

2.2 Perspectives

2.3 Mediation in a Trust Specific Context

The Mediation Process

3.1 Contractual Requirement to Mediate

3.2 Mediation Chronology

3.3 Trust Specific Issues

3.4 The Settlement Agreement

Appendix 1: Agreement for Appointment of the Mediator

Appendix 2: Settlement Agreement

The Role of Professional Advisors

4.1 Lawyer’s Role during the Mediation Proper

4.2 Lawyer’s Role before the Mediation

4.3 The Lawyer’s Role during the Mediation

4.4 The Role of Non-lawyer Experts within the Mediation Process

Tools and Techniques for Mediation

5.1 BATNA/WATNA

5.2 Interest-Based Mediation (Integrative Mediation)

5.3 Doubt and Dissonance Techniques

5.4 Hypothesis or Testing Mediation Techniques

Avoiding Disputes

6.1 Good Commercial Practice

6.2 Dispute Management

6.3 Non-contest Clauses

6.4 Duty to Negotiate

6.5 Negotiation

6.6 Facilitation and Facilitated Negotiation

6.7 Facilitation Quintessentially

6.8 Negotiation Compared to Mediation

Cross-Border Aspects and Issues

7.1 Types of Dispute

7.2 Analysis of Disputes

7.3 External disputes

7.4 Internal Disputes

7.5 Trust Specific Issues in Mediation

Typical Trust and Fiduciary Disputes

8.1 Trustees and Third Party Disputes

8.2 Disputes between Parties to a Trust

8.3 Costs: Fees and Disbursements

Preparation of Briefings and Openings by Mediants

9.1 Pre-mediation-proper Items

9.2 Mediation Proper Items

9.3 The Opening Statement

Appendix 1: A Suggested Settlement Checklist Template

10.

The Psychology of Mediation

10.1 Conflict

10.2 Chronology of Mediation

10.3 General Psychological Factors Affecting Mediation

10.4 Being Heard

11.

The Mediator’s Perspective

11.1 Powers to Mediate and Settle Disputes

11.2 Ethical Issues

11.3 Disclosure of Information

11.4 Relative Size of Dispute

12.

Considerations for Islamic and Sharia Trust ADR

12.1 Islamic Jurisprudence and the Concept of the Trust

12.2 Ontario: an Act to amend the Arbitration Act 1991, 2006 (‘the Act’)

12.3 Arbitration and Mediation Services (Equality) Bill (the ‘English Bill’)

12.4 ADR Codes of Conduct

12.5 Arbitration and Mediation in Islamic Jurisprudence

B Jurisdictions

Introduction

Australia

Bahamas

Barbados

The British Virgin Islands

Canada

Republic of Cyprus

Florida

France

10.

Gibraltar

11.

Guernsey

12.

Hong Kong Special Administrative Region (HKSAR)

13.

India

14.

Ireland

15.

Isle of Man

18.

Jersey

19.

Liechtenstein

20.

Malaysia

21.

Mauritius

22.

New Zealand

23.

Panama

24.

Scotland

25.

Singapore

26.

Switzerland

27.

United Arab Emirates

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