Lecia Hansen

More than 90 of Guernsey’s trust and fiduciary professionals attended a seminar on alternative dispute resolution (ADR) given by lawyers from Carey Olsen at St James earlier this month.

The presentation focused on mediation as one of the most appropriate forms of ADR for effectively settling contentious trust scenarios and was followed by an innovative mock mediation based on a fictional family trust dispute.  Lawyers from Carey Olsen’s trusts and fiduciary team participated in the mediation and department head Advocate Russell Clark undertook the role of mediator.

In the introductory presentation, litigation associate Lecia Hansen discussed the different forms of ADR and the benefits of applying these to certain contentious trust disputes.  She urged the audience to consider ADR as a possible alternative to taking a dispute to court explaining that, in contrast to ADR, court proceedings are a public process that can be time consuming and expensive.

The panel reviewed the new Guernsey Trust Law ADR provisions which give trustees power to compromise or settle claims without the court’s sanction. The provisions also offer a procedure which is unique to Guernsey where trustees can ensure minor, unborn, unascertained and legally incapacitated beneficiaries are properly represented and bound by any settlement agreements.

“Mediation provides an opportunity to air grievances which can often be of a personal and complex nature, on a without prejudice basis and without being subject to cross examination. Another major benefit is that the confidentiality of the process can protect the public profile of participants,” Ms Hansen explained.

The panel: (L-R) Lecia Hansen, Natasha Kapp, Russell Clark, Patricia Montgomery and Alexandra Gill

“The processes offer flexibility and can often provide an outcome that effectively addresses the personal objectives of each of the parties who are involved in the dispute, unlike court decisions which can ultimately leave at least one party dissatisfied with the judgment.  It is important to remember that ADR can be explored at the outset of a dispute or at any stage of court proceedings,” she said.

Advocate Clark explained how decisions are reached at mediation: “The mediator’s role is not to impose a decision on the participants but to facilitate an agreement between the parties and to ensure the process runs smoothly.  The outcome of mediation will be binding if the parties voluntarily agree to it and put the agreement in writing, however, if agreement cannot be reached, anything discussed at the mediation is confidential and cannot be used in subsequent court proceedings.”

Advocate Clark added: “The Guernsey court now has the duty to encourage and facilitate ADR and, with revisions in the trust law, resolving disputes by means other than resorting to the courts has been made more straightforward. Many disputes are being resolved by mediation and other ADR processes in Guernsey but of course not every dispute is amenable to a consensual process. I am sure that our court room advocates will continue to remain busy for the foreseeable future.”