While not all cross-border cases concerning trusts are suitable for mediation, it is a route to be considered when matters of privacy for families are at stake.

The following article demonstrates how the world of the international wealthy, who have interests in business and private wealth crossing international borders, requires new insights. Disputes concerning trusts and other structures with a cross-border element are examples of where expertise is essential. The following article comes from Danielle Cahill, a partner at Hugh James, a law firm. 

The editors are pleased to share these insights; the usual editorial disclaimers apply to views of guest writers. If you wish to comment and suggest ideas, please email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com 

Introduction: Global families, global disputes
For today’s ultra-high net worth individuals, wealth is increasingly global: family members can be scattered across the globe, assets held in offshore structures, and their wealth spans continents as well as generations. Accordingly, when disputes arise, over control, disclosure, or governance, they rarely fit tidily into the box of only one legal system. 

In the context of this sprawling framework, mediation has become an important addition to the litigator’s toolbox. Where a client, for example, is grappling with a parent’s estate, and there are multiple wills and properties spread across the world, it can be mediation that holds the key. Mediation has the benefits of being confidential and hugely flexible, and it is not bound by the same jurisdictional limits as the courts. 

Key risks of litigation for UHNW families
Global trust disputes can be expensive, hotly contested, and they tend to play out on the public stage; all these points should be considered when launching court proceedings. Where multiple jurisdictions are involved, there is also a risk that the courts could hand down inconsistent judgments, which is why having a co-ordinated global response, with legal teams working harmoniously together over many fronts, is so important. It is also vital to consider the strong possibility that litigation may damage already fractured familial relationships, particularly when the deterioration of family unity becomes public knowledge. 

A classic example is the recent English case of Hinduja v Hinduja (1) where the Court of Appeal took the view that a family’s desire for privacy was not deemed to outweigh the public’s interest in transparency. The case serves as an important reminder that privacy, once lost, cannot be reclaimed. 

Jersey courts, by contrast, are generally more inclined to protect confidentiality in trust proceedings, reflecting the island’s long-standing emphasis on discretion in private wealth matters. Even so, in HSBC Trustee (CI) Ltd v Kwong (2), the Royal Court declined to make a privacy order despite both parties agreeing that one was necessary, underscoring that the presumption of open justice can still apply. The Court confirmed that privacy would override publicity only in limited circumstances, such as where minors or vulnerable individuals are involved, where publicity would impede the administration of justice, or where the right to privacy clearly outweighs the public interest in openness. 

Against this backdrop, the increasing trend amongst UHNW families to turn to mediation is understandable. One of the major benefits of mediating is the opportunity to negotiate and resolve complex issues privately, which can afford high-profile families the chance to protect their reputation. Often family members are the public faces of the companies within their trust structures, so anything that affects their family’s reputation could have a knock-on effect on their businesses. 

Lessons from key jurisdictions
1. Jersey – Re Esteem Settlement (3) 
The landmark Re Esteem Settlement case remains a cornerstone of Jersey trust law. The Royal Court examined allegations that a Jersey trust was a sham designed to defeat foreign creditors, raising intricate questions of settlor control and disclosure. Although the trust was upheld, the case exposed extensive details of family wealth and governance in open court.

Re Esteem underscores the reputational risk that arises once proceedings enter the public domain. Mediation offers the opportunity for rigorous examination, but in a private setting, preserving the integrity of both the trust and the family’s privacy.

2. Guernsey – Re B Trust  (4)
In Re B Trust, the Guernsey Royal Court was asked to sanction a variation to a family trust amid allegations of trustee mismanagement. The proceedings highlighted the tension between judicial oversight and the family’s desire for confidentiality.

Even in Guernsey, where trust law is notoriously protective of privacy, the need for court approval can expose internal family dynamics. Mediation, by contrast, allows beneficiaries and trustees to negotiate bespoke solutions privately, avoiding unnecessary public scrutiny.

3. Cayman Islands – Schmidt v Rosewood Trust Ltd (5) 
In Schmidt v Rosewood, the Privy Council confirmed that a beneficiary’s access to trust information is an aspect of the court’s inherent supervisory jurisdiction, and not an absolute proprietary right. Disclosure is discretionary and requires a balance between confidentiality and beneficiary oversight. Cayman courts have applied these principles; see also Re Circle Trust (6), addressing fiduciary powers and control mechanisms in a family trust context. It is notable that publication of reasons in offshore courts can still attract significant media attention.

4. Jersey – Representation of the Y Trust and Z Trust (7) 
In this anonymised representation, the Royal Court considered Article 47 variation applications and clarified how ‘benefit’ is assessed, including the court’s willingness to consider wider family harmony and public policy. The decision (and subsequent directions) illustrates how even benevolent, technical applications can publicise sensitive internal family arrangements. 

5. The Middle East – DIFC courts: Open justice and privacy orders
By contrast, proceedings in the DIFC courts are presumptively public, with judgments routinely published and many hearings live streamed. Privacy orders are exceptional and must be justified; the Court will balance the interests of open justice against any claimed confidentiality. For families in the region, mediation aligns with traditions of reconciliation and allows disputes to be resolved discreetly while preserving optionality across multiple jurisdictions.

Efficiency and cost control
Cross-border litigations can run for a great many years, which would involve a significant outlay of costs. Mediation, on the other hand, can offer an efficient, results-driven alternative, resolving disputes within weeks or months, if parties are able to reach an agreement. For UHNW families, this efficiency can have the benefit of preserving both capital and emotional bandwidth.

A cautionary note: Timing 
It is crucial to note that not all cases will be suitable for mediation, particularly when parties have the drive and financial capital to take a case all the way to trial. 

Timing is also important when proposing mediation, and it is a matter which requires careful strategic consideration. Where a sensitive family dispute has arisen, which may involve problems and perceived wrongdoing spanning many years or decades, mediating too soon can result in the sense of justice being diluted. Indeed, some families need to feel that justice has been done and that they have “had their day in court.” Mediating too soon can lead to this sense of justice being lost. 

Conversely, delaying mediation for too long can allow people’s positions to harden and emotions to intensify, leaving the parties too entrenched to have the emotional energy to meaningfully participate (there might be too much “water under the bridge”). It is up to legal teams to make these judgment calls, and to suggest the most appropriate moment for a family to mediate. 

Conclusion: A private path to peace
From Re Esteem in Jersey to Schmidt v Rosewood and Re Circle Trust in Cayman, and the DIFC Courts’ open-justice approach in Dubai, the message is consistent: once a dispute enters open court (with no privacy restrictions), confidentiality is lost.

For UHNW families, mediation is not merely a procedural alternative, when deployed appropriately, it can be a strategic safeguard for privacy, legacy, and reputation, allowing families to manage disputes discreetly, ensuring that their wealth continues to strengthen, rather than divide, the generations. 

About Hugh James 
Hugh James is a full-service UK law firm headquartered at Two Central Square in Cardiff, employing more than 700 people across its Cardiff, Manchester, Southampton, Plymouth, and City of London offices.

About the author 
Danielle Cahill (pictured below) is a partner in Hugh James’ private wealth disputes team in London, with a particular focus on developing the firm’s cross-border and offshore disputes practice. Danielle spent 13 years of her career in Clifford Chance’s top-tier Litigation and Dispute Resolution practice acting on high-profile cases involving capacity and power of attorney issues in the High Court and Court of Protection. Her expertise lies in representing high net worth individuals in complex family disputes, as well as advising trustees, commercial and banking clients.

Danielle Cahill