The use of mediation in sports disputes
25 January 2019
With sports disputes being on the increase, it is becoming more important for parties to consider using alternative means to resolve disputes instead of the more traditional route of proceeding to arbitration or court proceedings. Mediation is commonly used to resolve commercial disputes but with sports disputes, it is not used as often despite its many benefits.
What is Mediation?
Mediation is a confidential and voluntary type of alternative dispute resolution whereby an independent mediator assists the parties in negotiating a settlement of a dispute.
The process typically begins by the parties setting out their positions in writing by exchanging position statements prior to the mediation with their opponent and the mediator.
Then, on the day of the mediation, the mediator will usually begin by holding a joint meeting when each party will have the opportunity to make an opening statement setting out their position once again on the outstanding issues. The mediator will then have private discussions with each party to discuss the issues confidentially and explore options for settlement.
If a settlement is ultimately reached, this is documented in a settlement agreement which is typically concluded and signed on the day or shortly after.
Sports disputes are typically resolved by way of arbitration in sport specific tribunals such as the Court of Arbitration for Sport or FIFA’s Dispute Resolution Chamber but whilst arbitration is typically a more efficient and confidential way of resolving disputes than court proceedings, it can still be time consuming and costly. This is particularly important in sport because parties frequently need disputes to be resolved quickly and cost-efficiently.
Mediation can be arranged very quickly and, therefore, it can provide for a quicker and cheaper alternative to arbitration whilst still being private and confidential.
There is no guarantee that mediation will result in a settlement, but it generally has a high success rate. The Centre for Effective Dispute Resolution carried out a mediation audit in July 2018 and the mediators who responded reported that 74% of their cases settled on the day with another 15% of cases settling shortly thereafter.
Even if mediation does not result in a settlement, there is still likely to have been a benefit by understanding the other party’s position, narrowing the issues in dispute and gauging the mediator’s opinion on the merits of the case.
Most sports disputes cases are suitable for mediation, particularly in cases where a speedy solution is required, the parties are likely to deal with each other in the future and/or previous settlement discussions have been unsuccessful. It is only really disciplinary cases which are unlikely to be suitable for mediation because governing bodies would be seeking to either impose or uphold sanctions as a result of regulation breaches.
The increasing number of disputes in sport and the need for those cases to be resolved quickly and costs effectively in a private manner means that mediation should always be considered and it is recommended that dispute resolution clauses in contracts refer to mediation to ensure that this always remains as an option.
Also, with the resources of sport specific tribunals coming being increasingly stretched, it will be interesting to see if those tribunals will start to encourage parties to mediate more by perhaps imposing costs penalties if a party unreasonably refuses to mediate in a dispute like the English courts have done for a number of years now.