Dr Karl Mackie, head of the Centre for Effective Dispute Resolution (CEDR) in the UK, considers how the lessons learnt in mediating commercial and civil justice disputes might be applied to political and diplomatic conflicts .

I'd like to give you a short overview as to how mediation has developed in the last ten to fifteen years, and some thoughts as to the transferability to the political environment. Really what I want to talk about, or summarise, are three what I call remarkable strands to the commercial mediation story.

It's a remarkable, and remarkably short, professional history. Because when commercial history began in the UK in around about 1990 there was no real mediation activity, so the first remarkable feature of commercial mediation is the truth that revolutions are possible, even if quiet revolutions.

Because in 1990 if you spoke to lawyers about mediation, commercial disputes or civil justice disputes, if you asked them about training in mediation, the answer was always zero: no experience, no training, usually incredulity about the idea, the concept of mediation. The feeling was: We've got the best of all possible worlds within the litigation system. It may be unsatisfactory to clients but it has evolved over centuries and therefore it must be something that's powerful and proven by experience. 

But the reality was many clients were dissatisfied with the system. Many creative lawyers could see that and were searching for alternatives, but there were no particular alternatives available to the normal going to court litigation system. 

So when we first began in CEDR to talk about mediation, CEDR was in fact set up as a flagship organisation to make commercial mediation happen in the UK and Europe, to make alternatives to trial much more viable, much more practical and practically available than they were pre-1990. 

So we started really from zero. But through awareness campaigns, and through the active support of some leading lawyers, and leading corporates, people did begin to at least sit up and pay attention. And in the early days when we spoke to law firms and companies about this process, normally they would be mildly interested, sometimes amused. Occasionally you would get the question, 'What about our fees as lawyers? Doesn't this potential process of short-circuiting a long litigation process mean we'll earn less money as lawyers?' Those were the kind of questions we got in the early 1990s. 

So remarkably from that start of zero, by 1999, we were fortunate in a sense that the civil justice system, by the second half of the 90s, was under major review. Lord Woolf had reported on access to justice and had suggested radical reform of the England and Wales civil justice system. And by 1999 he brought ADR, or Alternative Dispute Resolution, as it's known in the profession among the legal fraternity, he brought that into the very structure of our legal system. 

So now disputes going through the courts do have to address the issue of mediation. The judges in the very first rule under the new civil procedure rules, have an overriding objective of dealing with cases justly and actively managing cases by reference to mediation. They have the power, under the rules, to refer cases from the courts to mediators and mediation processes. And they also have the power to award cost sanctions if parties unreasonably refuse to go into the mediation process.

So judges now have considerable powers to leverage parties from the litigation process into a mediation process, into assisted negotiation. And that applies now not just during litigation proceedings but also before litigation proceedings are issued, under the rules. 

Also, since 1990 we've got the Department of Constitutional Affairs very much getting behind the whole philosophy of mediation and alternative dispute resolution. They now talk about proportionate approaches to justice, rather than focusing purely on the courts as the core way of resolving disputes. In that period, CEDR's had some 13,000 referrals to mediation. And we handle currently around 6-700 commercial mediations every year, many of them international commercial cases. 

I did a survey about a year ago about the top fifty law firms, and in 1990 100% of those firms had what they called 'litigation departments'. If you look at the top law firms they now have what they call 'dispute resolution departments'. So they have moved now philosophically from seeing the product as taking people through the courts, to trying to help people solve the problems of conflict that they face. 

And this remarkable history was summed up in a case two years ago by Lord Justice Dyson in the Court of Appeal on a major case dealing with cost sanctions, penalties for parties who refuse mediation. He said ADR mediation has been established in the UK in a remarkably short period of time. 

So the first remarkable fact about commercial mediation is that it proves quiet revolutions are possible and within a relatively short time period. 

The second remarkable feature about mediation in the commercial and civil justice arena, I would say, is its power: its depth and its breadth.

Mediations now take place throughout the justice system, cases from every commercial or civil justice sector you could think of: major supply goods cases, distribution systems, family businesses, partnerships, employment. Most of them are confidential in the commercial mediation world.

But a number have been public, so just to give you some idea of the kind of cases that have gone to mediation processes: the insurance disputes between the insurers and the pension funds over the Robert Maxwell pensions scoop staged after his death. That went to mediation and was settled in a mediation process. The Kenyan tribesman who sued the Ministry of Defence for injuries as a result of munitions left behind allegedly after British military manoeuvres in Kenya. Those personal injuries with the Ministry of Defence were mediated to a settlement. Slightly lighter arena. Brighton football club in the sports arena -  some of you might remember if you're into football some of the disputes between supporters and planning authorities over what would happen to Brighton football club's grounds - again went to mediation. 

And lastly a more perhaps serious, the Alder Hey retained organs litigation. Many of you will remember the parents of deceased children had to go through the pain of realising that the hospitals had kept the children's organs without express approval or authority. The law in the area was fairly unclear; there was a deep grievance about it, but there was no resolution going through the litigation process. Until the case came to mediation. 

It was settled in mediation, and in the course of that proved some of the value of mediation in that not only was there financial compensation but there were other elements to the agreement that could not have been achieved through the courts. The parents got a plaque in the hospital in memory to their children, they got a garden of remembrance by agreement with the litigation authority with the NHS, and they got a ministerial statement about promises to reform the law about retained organs. 

So cases from all kinds of backgrounds, all kinds of sectors, going through the mediation process.

It's not just the UK. The other remarkable feature of mediation in breadth and depth is that this process is spreading globally. We have been training mediators, for example, in Nigeria in the past three years and more training is to come in Kazakhstan and Azerbaijan.  And in the last twelve months we've been working in Pakistan to set up an ADR centre and train judges and lawyers in mediation in the Pakistan civil justice system. The World Bank is giving funding support to the development of mediation, not just for economics, but as part of good governance and the rule of law.

Finally, I should say something about the mediation process, because most people really don't know about it if they haven't been through it. And it's a relatively simple structure that underpins the mediation process, so the other good news for politics and diplomacy is that you do not need a degree in rocket science to understand mediation or to be able to apply it effectively.

In the commercial arena it usually requires a legal agreement between the parties saying the process will be without prejudice to their legal rights; saying the process will be confidential; requiring the parties just to bring decision-makers to the mediation; and allowing the mediator to have joint and private meetings (shuttle diplomacy) with the parties. 

And in most of these cases - this is the other remarkable thing about mediation - most of the settlements I've talked about take place after just one day of assisted negotiations. These are cases that have been deadlocked sometimes for years within the legal system. But the dynamic of this process is so effective that many of those cases move from deadlock and impasse to resolution in just the space of one day. Now that's not to say that some complex political cases might not take longer but it's a good example of how powerful a third party intervention can be in the right structure. 

So I think there are a number of lessons for politics and diplomacy that we from the commercial arena would like to share with you, but also to get feedback from you as to whether they make sense. 

The first is that mindset matters.

In 1990 lawyers did not think mediation would add any value to their practice. If you asked lawyers in 1990 'What about assisted negotiation?' they would say 'We normally do try to settle cases, that's what we're good at.' But actually they had forgotten the value of another kind of assisted negotiation process. So it is possible to change mindsets about negotiation. 

And second, training in the field is transformative.

We are committed to training mediators. It does require training to know the options available, to know the skills available and to identify people who have the personal qualities to bring to this field. Many of the lawyers, and not just lawyers, who come on our course say the experience has been life-changing. They have never trained in the role of a neutral negotiator, never stood in the shoes of someone whose job it is to sort out conflicts from an independent detatched viewpoint. They're normally in the shoes of someone who's a partisan advocate for the case. And so are most politicians. 

The third lesson is that process design is just as important as substance, and usually lost in the economics and emotions of any conflict.

Thinking through where to get best leverage, how to best structure negotiations, who should be at the negotiation table - I think many diplomats think they've put their minds to that process.  But I'd just ask whether they have applied enough thought to neutral process design. Were they not involved in the case, would they think differently about how to put together the disputants? 

Fourth lesson - the game is definitely worth it.

There is huge cost to conflict. And the more research we've done at CEDR the more we have appreciated how much value is lost in our society through conflict just in commercial disputes, leaving aside the violence we see and the civil unrest from political and diplomatic conflicts. 

Last year we calculated the cost of destructive commercial conflicts is running at £33 billion a year in the UK alone. And the Parliamentary Select Committee for Development noted that one civil war in one emerging country virtually equals the whole of the global aid budget in one year. So conflict prevention is important. 

These strands of these various lessons have one final spin when it comes to politics and diplomacy that is vital to consider.

It's trite to say now we live in a globalised society. That's not just about globalisation - it's also about greater interconnectedness between the commercial arena and what's happening at the political level. It's not just showing up in commerce; it's showing up in the types of wars, the types of conflicts, that we face nowadays. Far more conflicts involve civilians, involve civil wars, and not just external military action.

So there is great scope I think to explore tactically how mediation in commercial disputes can gradually influence and affect the political arena as well. And so I look forward to discussing your views on some of those issues, and to Lord's Hurd's reflections on it. Thank you very much.

This is a slightly edited version of a talk given on 13 March 2007 at Westminster to the All-Party Parliamentary Group on Conflict Issues, and transcribed by Wendy Conway Lamb.