Where there is a Will there is a way?

Wills can provide the best way to ensure that the needs of those left behind are met. But on occasions, even the best drawn Will can result in crisis for the family.

With an ageing population, problems are now arising in relation to Wills made years earlier, where the testator's circumstances (the person making the Will) have changed, but the Will has not.

Those who are to benefit under the Will may have died before the testator, for example a son or daughter leaving no grandchildren. Occasionally, the deceased's second wife or elderly partner may be unable to cope in a home in which they have only been left a life interest. In other cases the list of people to benefit under the Will may not be fair, given the passage of time. Of course, the simple answer would be to make a new Will, updating the arrangements. But increasingly, the elderly are facing age-related dementia with the inevitable problems that arise concerning their capacity to change their Will towards the end of their life.

Here, the rules of Intestacy (rules taking the place of a failed Will) can produce bizarre and unwanted outcomes. Some estates fall to be distributed widely amongst people who had no real relationship with the deceased, whilst those who have provided constant and attentive care go unrewarded.

There is a role for the Court of Protection to make a 'statutory Will' should there be a real need to change a Will and an elderly person not have the mental capacity to determine their own outcome. But this too can be fraught, because time-scales are frequently unfavourable and the court may not be able to act with expedition. Other courts can intervene after the death, but this can strip the value of the estate due to the sheer cost of litigation.

In recent years I have been contacted to facilitate settlements in this type of case. Families were looking at the outcome under the Will, saying to themselves, "this is not what she would have wanted had she known. What can we do to change it?"

There is a popular misconception that a person's Will is the final and determinative factor. This is not the case. Families can agree other arrangements, and where agreed, these can then take the place of the terms of the Will.

In one such case the family wrote to each other and suggested a facilitated meeting. We met to identify exactly what arrangements each would prefer. The meeting lasted the whole day. Everyone had their say, putting forward their favoured proposal and their reasons for it. In a structured session, family members listened to the arguments and noticeably changed their positions. The agreement they ended up with was very different from what their relative had provided, but brought the situation up-to-date in a way with which he would have approved. They said afterwards that it was just as if he had been with them, guiding them to a fair solution.

In those sad situations where a person dies without close relatives, the rules of Intestacy can result in a wide distribution to people who did not know the deceased. In such circumstances it is open to distant relatives to agree compromise arrangements that require the executors to make provision for close carers (for example step-children) who otherwise would not fall within the rules. Such meetings are best conducted face-to-face, but can be arranged at a distance by e-mediation. In one such case, distant relatives in Australia entered the process, initially be email and private messaging, and later by Skype. Here, a full agreement was reached and the executors were authorised by the beneficiaries to create a new term interest in a home to ensure that the deceased partner's children were accommodated until they finished their university studies.

The watchword of facilitation is that anything is possible if those involved can be brought to an agreement. Judges have indicated that, where agreements are reached, the courts will uphold them. So, even at difficult times following bereavement, it is still possible to make a difference and reach a fairer facilitated outcome.

European Forum for Restorative Justice - Leuven Belgium / Belfast Northern Ireland

Michael Klitching, Chair International Forum for Restorative Justice, David Ford, Justice Minister for Northern Ireland and Tim Chapman, University of Ulster - Conference Chairman outside Queens University, Belfast

Whilst traditional mediation places a focus on re-engaging relationships, it has never been a core aim. Mediation, being party-led, goes only where the parties choose to go - frequently to reach a working agreement, but not to fix their relationship.

That is fine, but what if the parties to a dispute wish also to restore a trading, contractual, employment, operational, social, or other working relationship?

Restorative Justice (RJ) used to be the term for 'interventions between victims of crime and offenders'. Over the last few years, RJ has transcended this simple definition to become a highly recognised transformative technique for 'fixing relationships' of all kinds. Herein is its power.

After the European Forum's 'Accessibility and Initiation of Restorative Justice conference' in Leuven, Belgium in May 2014, I went on to join the Forum's 8th International three day Conference 'Beyond Crime- Pathways to Desistance, Social Justice and Peacebuilding', this year held in June at Queen's University, Belfast, Northern Ireland, supported by the University of Ulster.

It is hard to imagine a more illustrious line-up of plenary speakers - Shadd Maruna and Kieran McEvoy, University of Belfast; Joanna Shapland, University of Sheffield; John Braithwaite, Australian National University; Tove Malloy, European Centre for Minority Issues; and Brunilda Pali, Catholic University of Leuven. Throughout the three days, there were fifty five parallel workshops, each headed by experts in their field, many with international expertise - Northern Ireland, Romania, Germany, Tasmania, Portugal, Estonia, Singapore, Hungary, Russia, Ireland, UK, New Zealand, Netherlands, Spain, Norway, Albania, Macedonia, Belgium, Austria, Canada, Finland, Serbia, Sweden, Brazil, USA, Italy, Chile.

A summary such as this can only adequately address 'net effect'. Just as travel broadens the mind, so international collaboration broadens both vision and skill sets. The net effect for me as a facilitator was the opportunity to witness the communality of approach amongst other facilitators, and to experience the elements that inject energy into a process which at times can be very challenging.

Restorative Justice, whilst reminiscent of interventions in crime, has become the advance-track of the mediation movement. For public organisations, trading companies and in the workplace - facilitators out there - take notice and learn skills and approaches from RJ practitioners. Ignore them at your peril!

President's Appointment

Workplace disputes can be some of the most damaging. Conflict at work often contaminates a wider part of the workforce than those actually involved in the dispute. People take sides, factions develop, trust disintegrates, and productivity suffers.

For the employees themselves, conflict at work takes away their ability to function. They dread going to work, absenteeism increases, and frequently longer-term sickness results. At any level, this can be damaging for any organisation. At the highest level, it can be disastrous.

This blog concerns a dispute which has been anonymised, but arose from an appointment from the President of a UK registered company, where two company directors were in significant conflict.

The company Chairman and Chief Executive asked the President to intervene. The two directors concerned were key to the operation of the company, and neither could realistically be released because of their distinct skill sets. Conflict between them had become so visible that the future of the company was brought into question. Whilst not working directly together, the directors met frequently to co-ordinate policy and determine strategy for management.

The President, Chairman and Chief Executive sought an independent expert to work within the company. They considered it to be essential that dispute facilitation and management should happen inside the workplace, and that every aspect of the two directors' interaction should be examined. The task was deemed beyond the company's Human Resources team, and called for neutral and independent expertise. Confidentiality was critically important as competitors were unaware of the issues facing the company.

Our remit was to restore the working relationships, to evaluate the causes of breakdown, to identify and implement strategies to support revised working relationships, and to provide a template for future dispute management. It was agreed that a 40/20/40 split of intervention would be appropriate: 40% of intervention time being spent before a joint meeting between the directors, 20% for the meeting, and 40% of the intervention to support the outcome. Whilst a permanent outcome was sought, the President was realistic about the potential duration of any initial settlement agreement.

A key task for any outsider entering a company is to understand company culture. Here, nothing can be taken for granted - each company demonstrates its own quirks as well as unique procedures. For the facilitator, careful and quiet observation is essential, and formed the first part of the intervention.

We considered it right that all employees of the company should know of the appointment at the outset. Trust and integrity are paramount at all stages of intervention. Throughout the process, I worked with a colleague facilitator to ensure that instant communication was available for all involved, and that objectivity was preserved. We ensured that we spoke to every employee about their working arrangements and relationships. Individuals were not asked directly to comment on the evident issues that resulted in our appointment. This way, all voices were heard without accentuating opinions on the conflict.

The second stage involved individual work with the two directors concerned. This task was complicated by strong personalities and positions. Sub-texts were identified and examined. Issues of power, influence and cultural differences were visible. However, substantial areas of communality were identified and formed a sufficient basis for a joint meeting. Importantly, as facilitators, we addressed the agenda for the meeting, allowing a degree of prescription to enter so as to engage the parties.

Managing the meeting was relatively simple. Due to substantial background work and time with the parties and others, the issues were clear, could be quickly articulated, and we were able to move to the exploratory phase of problem solving. The meeting lasted 3 hours, with one break, and resulted in a written agreement, which was perfected overnight on instructions.

The agreement had highly prescriptive aspects to it, which were clearly unsustainable in the long term. We considered it essential that both parties should agree on, or at least understand, the next phase - allowing the relationship to become less prescribed and more flexible. For this third phase, we returned on three separate occasions to conduct mini-sessions with the directors separately, and one with both together.

This appointment and intervention proved to be highly productive for the company. With new working strategies, many of which were adopted across the company, and with greater functionality of the directors, factions dissolved, productivity rose, and profitability increased almost immediately. A score of 9/10 was given for the mediation process, and 10/10 for the facilitation.

Welcome to Stephen Twist Mediator

With over 40 years experience as a barrister in private practice, and the last 21 years as a mediator and arbitrator, I felt that the time had come for me to launch my new, personal dispute facilitation service - 'Stephen Twist Mediator'.

Increasingly, I am being instructed by other lawyers and in-house managers to act as a facilitator in intractable disputes. These cover almost all areas of conflict - commercial disputes, public authority issues, breach of contract, professional misconduct, land and boundary disputes, Wills and Intestacy issues, and workplace and employment conflict.

It seems that a significant problem for dispute managers and human resources teams is to find an individual facilitator who has technical knowledge of the issues, a knowledge and understanding of the legal points, and a track record of successful interventions. The principal mediation services provide lists of facilitators, but 'a list' cannot match the relationship of trust with a known, bespoke facilitator with successful experience who is entirely independent of the organisations concerned.

Over the next few weeks I will be posting details of the services I can offer, my collaborative method of working, facilitation styles - including evaluative facilitation, and examples of disputes in which I have been appointed as an independent facilitator.