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

  • ID: 3065462
  • Book
  • December 2014
  • Region: Global
  • 412 pages
  • Spiramus Press
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. The mediation process is explained, including: the role of professional advisors, and the tools and techniques for mediation. The authors examine ways of avoiding disputes, cross-border aspects of Alternative Dispute Resolution (ADR), the psychological factors affecting mediation, the mediator’s powers to mediate and settle disputes, and ethical issues in Trust ADR. Islamic and Sharia Trust ADR is also considered, with close study of the developing approaches in Canada and the UK.

Part B examines 27 jurisdictions and how trust law and ADR operates in each of them. The jurisdictions covered are: Australia, Bahamas, Barbados, The British Virgin Islands, Canada, Cyprus, England and Wales, Florida, France, Gibraltar, Guernsey, Hong Kong, India, Ireland, Isle of Man, Israel, Italy, Jersey, Liechtenstein, Malaysia, Mauritius, New Zealand, Panama, Scotland, Singapore, Switzerland, and the United Arab Emirates. 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.
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Foreword by Geoffrey A Shindler

A. Introduction to Dispute Resolution

1 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

2 Benefits of Mediation for Trust and Fiduciary Disputes
2.1 Avoiding Costs Orders
2.2 Perspectives
2.3 Mediation in a Trust Specific Context

3 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

4 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

5 Tools and Techniques for Mediation
5.2 Interest-Based Mediation (Integrative Mediation)
5.3 Doubt and Dissonance Techniques
5.4 Hypothesis or Testing Mediation Techniques

6 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

7 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

8 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

9 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
1 Australia
2 Bahamas
3 Barbados
4 The British Virgin Islands
5 Canada
6 Republic of Cyprus
8 Florida
9 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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Grant Jones LLM, New York attorney, solicitor, a Fellow of the Institute of Chartered Accountants and of the Chartered Institute of Arbitrators, is a visiting Nottingham University Law School professor, who practises as both a solicitor and a chartered accountant, in London and Gibraltar.

Peter Pextonis a Fellow of the Institute of Chartered Accountants, an Associate of the Chartered Institute of Arbitrators and an active member of the Society of Trust and Estate Practitioners [STEP]. Founder chairman of the Jersey Branch and immediate past chairman of Verein STEP (Switzerland), he now chairs the Membership Committee of STEP Worldwide. Specialising in offshore trusts, estates and tax planning, Peter practised as a partner in the Jersey firm of Ernst and Young, then as a director of Royal Bank of Canada Trustees Limited and more recently as a director of Ganten Group in Liechtenstein.

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