Commercial Arbitration – UK and International

As Counsel

Marc Beaumont FCIArb. (in International Commercial Arbitration), brings the know-how and experience of a senior Barrister to his advocacy in Arbitrations in many of the areas of work listed on the commercial and international pages of this website. He accepts instructions to act as Counsel in commercial Arbitrations from UK, US and Caribbean law firms and from clients instructing him directly under the Bar’s International Practice Rules or the English direct access scheme.

As Arbitrator

Marc Beaumont FCIArb. serves on the panel of Arbitrators at the Court of Arbitration for Sport in Lausanne, Switzerland and in Malaysia, at the Kuala Lumpur Arbitration Centre  He also offers an Arbitration service in US, UK and Caribbean Arbitrations with an English law component.

Marc is a founding, individual member of the New York International Arbitration Center (NYIAC), a member of the London Court of International Arbitration (LCIA) and its North American Users’ Council, the Chartered Institute of Arbitrators and the United States Council for International Business.

Mediation across all areas of practice – UK and International

As Mediator

“Marc´s Mediation style is one of comfortable and conversational informality against a backdrop of an acute awareness of the perils of litigation.”

Marc Beaumont FCIArb. offers a full Mediation service in the UK and in the USA and as a panel Mediator in Malaysia at the Kuala Lumpur Arbitration Centre.  Marc is a trained and accredited Mediator.  He conducts Mediations or will represent clients at Mediation and Arbitration as an advocate and adviser.

Marc provides an Early Neutral Evaluation (ENE) service and will also act as “settlement Counsel.”

He is listed on Property Law UK as a Mediator of property disputes.

For a published article about Psychotherapeutic Mediation please click here

On 21st June 2011, Marc Beaumont spoke about Mediation at the International Conference of Jurists arguing for Psychotherapeutic Mediation to be used as a model for international commercial Mediation.

In June 2013, Marc Beaumont spoke at the Bar Council in London at a NYSBA London Chapter seminar conducted with Mr Stephen Younger of New York firm, Patterson Belknap (former NYSBA President) on a psychological approach to Mediation in international commercial litigation.

In March 2014, Marc Beaumont spoke in Paris at the NYSBA’s Spring conference Arbitration & Mediation program on bridging the differences between Civil Law and Common Law jurisdictions.  This was followed up with an article on the same topic in the NYSBA International Law Section’s bulletin, summer issue (2014):  “How Can Mediation Rather than Arbitration Bridge the Gap Between Common Law and Civil Law Jurisdictions?”

In US Mediations, Marc will, where appropriate, co-mediate with US trained lawyers, including fellow psychotherapeutically trained Mediator, Ms Jane Cottrell.

 

What is Mediation ?

Mediation is an informal process by which a trained, neutral facilitator will assist the parties to resolve their dispute.

What are the benefits of Mediation ?

The benefits are numerous:-

  • Mediation can be arranged quickly and at short notice
  • Mediation takes place in private
  • The Mediator will treat one-to-one discussions as confidential
  • The process is without prejudice. Things said in Mediation cannot be referred to later in Court
  • The parties retain control over their dispute. They do not cede control to the justice system. They enjoy a sense of empowerment
  • A Mediator can suggest practical solutions which a Judge could not suggest, let alone impose
  • The process is purely voluntary and consensual. Parties attend because they want to, not because they have to
  • Legal Costs are capped
  • Court delays are avoided
  • A good Mediator will be a good listener. An angry, hurt or disaffected party will feel that he or she has had a fair hearing
  • Marc’s Mediation fees are low
  • Confrontation at Mediation is kept to a minimum
  • Prolonged litigation can become an obsession and dominate one´s life. Mediation ensures that energies and finances can be turned to better things
  • It may be possible to resolve a dispute at Mediation and then help to restore the relationship of the disputants

What does Mediation cost ?

In the UK, Marc Beaumont charges on average £ 1,500.00 plus VAT per party for a one-day session. This will last from 10 am to 6 pm and will involve several hours of pre-reading. Some Mediations continue into the evening. There may be an additional hourly charge after 6 pm if this happens. There may also be chargeable disbursements such as room-hire costs. The fees are shared equally between the parties. Overseas Mediation costs reflect travel time.

What happens at Mediation ?

Before the Mediation, the parties will prepare succinct Position Statements and send them to the Mediator and, preferably, to one another. The Mediator will be sent some of the papers in the matter. Quite often, extensive pre-reading will not be necessary. It is often a mistake to assume that the Mediator needs to see a huge bundle of papers.

The Mediation may well begin with a joint session. There will be a short introduction from the Mediator. He will then invite each party to speak. Lay parties and legal representatives may speak, as may any other party with a legitimate interest in the dispute. This discourse must be carried out without interruption.

The Mediator will then ask the parties to retire to their own rooms. He will then move between each room – a form of shuttle diplomacy. He will explore the issues with each side in private. These sessions are known as “caucus” sessions.

As the day progresses, key issues tend to emerge. The Mediator will assist the parties to formulate pragmatic solutions. He will do so by a combination of careful listening, empathy, exploration of underlying motivations and a projection of the consequences of not reaching a settlement.

Why are Windsor Chambers´ Mediations different ?

Marc Beaumont was trained at the School of Psychotherapy and Counselling (“SPC”) in London. This is a revolutionary course designed by a Psychologist and a Barrister.

There are many overlapping features of Mediation and Psychotherapy. The techniques used are very similar. The rationale of the SPC approach is that being in dispute is an unnatural state caused by unchecked emotion. Most disputes are driven not only by issues or legal rights, but by emotions. A legal problem is merely a symptom of an underlying emotional crisis.

Parties fail to settle their disputes because they and their lawyers become obsessed with legal rights and legal wrongs. This is to address symptoms but not causes. If the underlying causes of a dispute can be better understood, ventilated and removed, then the blockage which prevents parties settling their differences can be extinguished. Marc uses psychotherapeutic techniques to attempt to remove the emotional and psychological underpinnings of a dispute.

Marc’s approach is coupled with the know-how of a senior Barrister. Legal training is very useful as a tool for evaluating the strengths and weaknesses of a case. It can also provide a fund of experience which yields imaginative and creative solutions. However, it is a mistake to assume that this is enough on its own.

How long does Mediation take ?

Marc’s Mediations require much listening. It is a subjective process. It cannot be rushed. Parties really need to be heard. That is why Marc usually sets aside a full day for the process.

Where does Mediation take place ?

Anywhere.  Marc has excellent facilities at Windsor. The venue may depend on where parties live or work. Solicitors´ offices are often very good, well appointed venues for Mediation. Marc will organise the venue. Some disputes, such as boundary and neighbour disputes are best conducted on site.

What kinds of dispute are fit for Mediation ?

99% of disputes can be mediated. At Windsor, Marc conducts commercial, property and family Mediations. Disputes come in many shapes and sizes. They are as infinite as human relationships: property ownership, business relationships, marriage, employment and inheritance are forms of human activity which so often produce conflict and so often require Mediation.

What if the dispute does not involve English law ?

Overseas businesses may elect to appoint a UK Mediator of a commercial dispute. If the Mediation produces an enforceable compromise agreement, that is a contract made in England and therefore it is enforceable here.

When is the best time to mediate ?

Now: there is no reason to delay. It is a frequent error of lawyers to assume that they need to engage in a skirmish in correspondence or to exchange statements of case before mediating. This may well entrench positions, generate more negative emotion and increase costs. It may be necessary to obtain some disclosure before Mediation, but the Mediator can always ask for such information himself.

So often parties try to impose pre-conditions by saying that they will only engage in Mediation if they can first have some written answers to aggressive and intimidating questions, or if they can be served with some key documents. This is usually a mistake. The Mediator can always ask for this information. If there is a choice between setting up the Mediation and getting bogged down in some arid and expensive dispute between warring solicitors, the former is very often the best option.

Is Mediation just negotiation by another name ?

No. The intervention of a neutral third party greatly alters the dynamic of a dispute. Lawyers in negotiation will be hired partisans who see themselves as champions, whose task is to achieve vindication by destroying the case of the opponent. That mindset will spill over into their negotiation. They will argue their case as a demonstration of strength. That merely entrenches positions and stimulates more of the negative emotion that becomes a blockage to dispute resolution. They will also exaggerate their demands in order to achieve some “bottom line.” So negotiation is often a blustering game of bluff and counter-bluff. Mediation is an empathetic and balanced process performed by a sober neutral, not a partisan gladiator.

How does Mediation differ from Arbitration and Conciliation ?

An Arbitrator hears evidence and makes findings of fact and law. A Mediator makes no decision at all. He facilitates and is non-judgmental.

Conciliation involves an element of shuttle diplomacy, but is not as structured or as intense as Mediation. It may occur sporadically over a long period of days or weeks and will be performed over the telephone or by correspondence.

If the parties request it, Marc may be willing to offer a form of evaluative Mediation.

What happens if a party refuses to mediate ?

If a dispute reaches trial and a party has refused to mediate, the court may penalise that party in the costs order that it makes at the end of the case. Such a penalty may be imposed even on the winner.

What happens at the end of Mediation ?

The Mediator always has an overriding aim: to reach a settlement by the end of the day. He will draw up a Memorandum of Agreement which evidences an enforceable contract of compromise.

Does Mediation work ?

It is said that 85% of Mediations are successful. Virtually no litigant could claim that they have more than an 85% prospect of success at a trial. On this ground alone, everyone locked into a dispute should try Mediation before litigation.

Feedback about Marc Beaumont’s Mediation work

“We were involved in litigation with a neighbour when we selected Marc as a Mediator. We chose him in preference to several alternative Mediators because of references to his experience of psychotherapeutically based mediations. This approach enabled him to achieve an Agreement in the course of a single day. It resolved a problem that had been extant for nearly four years. Needless to say we were delighted with the outcome and the end to the litigation. As stated in the propertylawuk.net website we found that Marc´s style is one of comfortable and conversational informality against a backdrop of an acute awareness of the perils of litigation.”

Party to Mediation

“Marc has a very firm hands on approach to Mediation and clearly helped the process considerably”

Solicitor Partner, Manchester