0 Professor Karl Mackie, a tireless advocate of alternative dispute resolution, tells Jon Robins why the tide has turned for mediation


Mediation is one of the UK legal community’s most successful exports. So Professor Karl Mackie, a tireless advocate of alternative dispute resolution, or ADR, could have been forgiven a moment’s pause for thought when he recently arrived at Rome Airport. ‘It’s the only airport in the world where they have ADR printed all over the carpets,’ he recalls. The initials stand for Aeroporti di Roma, but Mackie was there to preside over one of the year’s biggest commercial disputes, with the airport’s two owners deadlocked over a new development plan for the airport.



Professor Mackie has been advancing the cause of ADR for almost three decades, and has led the Centre for Dispute Resolution (CEDR) for the last 18 years. CEDR has spearheaded what Mackie has called ‘a global revolution’ in legal practice. The lawyer is a carefully spoken evangelist for the cause, not a man who overstates his case.



Speaking at CEDR HQ on Fleet Street in London, Mackie offers a tour of the organisation’s work. ‘We have been working on an action plan for the Ministry of Justice in Bosnia-Herzegovina, and advising the government in India on international mediation and arbitration,’ he says.



‘We have been working in South Africa, getting commercial mediation off the ground.’ He also mentions Botswana, Hong Kong as well as ‘a colossal amount of work in China, raising awareness about commercial mediation’. The CEDR annual report further lists the group’s work in Morocco and Croatia. ‘It is amazing, over the last two or three years, as to how much the experience in the UK has provided a platform for a lot of international recognition,’ he says. ‘It is a bit like areas such as privatisation – we in the UK have been in the vanguard in many ways.’



Many lawyers, not to mention a large part of the judiciary, have – up until relatively recently – regarded ADR as litigation’s inferior twin. So how has the UK earned such prominence? Inevitably, Mackie pays tribute to Lord Woolf’s 2001 Civil Procedure Rules which, as he puts it, ‘really integrated ADR in a coherent and consistent way within the legal system’ (Lord Woolf himself became a special adviser to the UK’s largest mediation group when he retired as lord chief justice in 2005).



‘We have a much more coherent mediation community than the US,’ Mackie adds, ‘with widely recognised training standards and a lot of activity. This has meant that mediation is able to move to a sophisticated level pretty quickly. Albeit there are still challenges out there and work that needs to be done.’



It has been two decades since Mackie and Eileen Carroll, then a lawyer with US firm Turner Kennett Brown (later to merge with Nabarro) and now CEDR chief executive, went out to dinner with Lord Mackay and his wife at an American Bar Association conference in Hawaii. They discussed ADR. ‘That was the first influence that we had with the lord chancellor’s department,’ Mackie says.



Mackie was then director at the Centre for Legal Studies at Nottingham University, and already had what Carroll has described as ‘an intellectual curiosity’ for mediation and ADR. He started his working life as a psychologist, before qualifying as a barrister ‘advising businesses on strategy and the psychology of management’.



Does that background help with mediating? ‘You’re much more aware of human relationship issues and negotiation dynamics are often very much more about people than law,’ he replies.



Do the qualities that make a good litigator militate against being a good mediator? If you were to ask the general public ‘intuitively’ which of the professions would be the best mediators then ‘probably lawyers and litigators would come quite low down’, he replies carefully. Most CEDR mediators – about 70% to 80% – are lawyers.



After a stint in psychology, Mackie became a lawyer working in the employment field, joining the ACAS panel of mediators and arbitrators, and then becoming director of the Law Society’s Commerce and Industry group. ‘I got to know general counsel very well, as well as their concerns and dissatisfaction with the litigation system,’ he says.



CEDR came to life in 1990 with £12,000 raised from sympathetic law firms and businesses. It was run from Eileen Carroll’s TKB office in London with Mackie as part-time chief exec. It now has 35 staff with a £4 million turnover and an international practice of between 600 and 700 cases. CEDR is a major player – Mackie reckons there are about 4,000 mediations in the UK.



The group’s dispute resolution arm, CEDR Solve, has been referred more than 13,000 disputes and now has a panel of 130 mediators.



Mackie has his own caseload and undertakes one or two mediations every month. He has undertaken a number of landmark litigations, such as the Maxwell pensions and the Alder Hey missing organs scandals. At Alder Hey organs were taken without permission from babies who died at the hospital between 1988 and 1996. ‘Alder Hey was a case where the courts couldn’t have achieved the remedies that came out of the mediation,’ he says. ‘There was an apology, a plaque to the parents and children at the hospital, a memorial garden. All that came out of the mediation process.’



Spreading the word about the transforming potential of ADR and training up mediators has always been part of the CEDR mission. Beyond that, it has spawned a movement and trained 3,000 people to become mediators in the process – but the group’s progress has not been without flak. It was criticised for creating a select panel of dedicated mediators working on an exclusive basis, a criticism that Mackie reckons was due to ‘a maturing market and people being concerned about getting the instructions in’.



‘Plus, we were a major player in the market and people felt threatened by us adopting that stance,’ he says.



Inevitably, CEDR has created its own competition and, some would say, become a victim of its own success. ‘Mediators who want to make a career out of it and have an income stream found that just being part of the CEDR panel was not enough, and so they wanted to branch out. It has meant that we have been competing with ourselves in a sense,’ he acknowledges.



What is the sales pitch? How does Mackie impress upon a business the benefits of mediation over and above traditional litigation? ‘Essentially, it is down to time and cost,’ he replies. ‘It is definitely a much faster process and saves cost, rather than trolling through litigation. When it comes to long-term contracts, often the key thing is relationships. People’s communications break down or relationships become difficult, and mediation helps keep those relationships are bit more on track.’



He reckons CEDR ‘consistently gets 70-80% of mediations to settle on the day, and a very high percentage of those that do not settle very soon afterwards’. Only 5% of CEDR mediations go to trial, making it ‘an amazing process in that sense’, he adds.



But, Mackie says, the other message for business is how mediation ‘works in a proactive and managed sense’ rather than as ‘in a rescue ambulance crisis sense’. It is a message that has increasingly been taken up. He cites the growth over the last 18 months of new NHS procurement contracts, including a CEDR mediation stage.



Have the courts been as robust as they could have been? ‘There are still a lot of judges who are unfamiliar with what mediation is about and there is still a degree of discretion as to whether to push for mediation,’ Mackie replies. ‘They still might see mediation as a degree of competition for the courts rather than an integral part of the justice system.’



He calls Dunnett v Railtrack [2002], where, for the first time, a successful litigant was deprived of costs, ‘one of the early triggers for lawyers to sit up and take this seriously’. There then followed the relative disappointment of Halsey v Milton Keynes NHS Trust [2004], which looked at when the court might order costs against a successful party that refused to mediate at the invitation of the unsuccessful party. ‘It took a more nuanced view,’ Mackie acknowledges. ‘It probably decreased the acceleration of mediation, but it still effectively said that this is a very credible process for clients and every lawyer should see that it is part of their duty to work with mediation.’



Finally, what about resistance from the legal profession? ‘In some ways there has been a huge turnaround in terms of the mindset of lawyers,’ replies Mackie. ‘It is no longer: “Why should we be in mediation?” The questions that we got in the early days have just moved on hugely.’



Some sectors are tougher than others to crack, however. Mackie argues that personal injury is an area where mediation has been deployed effectively in parts of the US but not, as yet, in the UK. ‘PI lawyers tend to be specialists and to break them out of their habitual way of working requires a lot more campaigning, but we are working on that,’ he says.



Mackie believes there could be ‘some accelerated development’ if insurers start ‘rethinking their approach to claims’. But, ‘in some ways, they are equally conservative,’ he says – though CEDR has been working on a pilot with ‘a major insurer… testing the waters’.



Perhaps wider PI mediation is nearer than you think.



Jon Robins is a freelance journalist





'The thinking lawyer's Sean Connery'



Karl Mackie has been CEDR’s chief executive since it was founded in 1990 and has been engaged in mediation practice since 1980.



A barrister and psychologist by training, Mackie is a fellow of the Chartered Institute of Arbitrators, sits on the panel of the UK’s statutory labour relations dispute trouble-shooter ACAS, is a fellow of the Royal Society of Arts, holds a PhD and MBA, and sits on the Singapore International Commercial Mediators Panel.



Mackie has been awarded an honorary professorship from the University of Birmingham and is visiting professor of ADR at the University of Westminster. He is chair of the charity Write-Away (a children’s book resource for teachers, students and librarians, providing literacy support) and deputy chairman of the Civil Mediation Council.



He has been described by the in-house counsel of an international pharmaceutical company as ‘the thinking lawyer’s Sean Connery’.



Mackie divides CEDR’s work into three parts: CEDR Solve, its dispute resolution arm which offers the full range of mediation services; CEDR Skills, which covers mediator training, accreditation and consultancy work, for example, training public bodies on negotiation and conflict management skills; and the Foundation, which Mackie describes ‘as growing the market, developing the field and keeping professional standards’.



CEDR Solve has been referred more than 13,000 disputes and now has a panel of 130 mediators.



CEDR has trained 3,000 mediators around the world.