SETTLING SPORTS DISPUTES BY ‘MED-ARB’
With sports disputes on the increase and the need to settle them quickly, especially where sporting deadlines are in play, various forms of alternative dispute resolution (ADR) are proving attractive to the international sporting community.
One such form of ADR, which is particularly appropriate, is ‘Med-Arb’.
This is a process that combines Mediation to identify the issues in dispute and, if not successful, which generally Mediation is in 85% of suitable cases, and Arbitration finally to settle them.
Advantages of Mediation
The main advantages of Mediation have been summarised in a previous NEWS item on this website and need not be repeated here.
However, it is worth emphasising that Mediation will only be successful, if the parties are willing to settle their dispute amicably and make concessions and compromises.
For example, in one case, in which Mediation was proposed to settle a dispute between two rugby union football clubs, the captain of one of them remarked that “if the Queen of England herself were to come and mediate, it would not make any difference at all!” Obviously, in that case and with that attitude, Mediation would never work!
Furthermore, settling disputes by Mediation, rather than in the courts, may be viewed, in some quarters, as a sign of a weak case, but this is not necessarily so! Mediation is a tried and tested way of settling disputes.
Advantages of Arbitration
The advantages of sports Arbitration may be gleaned from the undoubted success of the Court of Arbitration for Sport (CAS), which, during its more than forty years of operations, has gained the confidence and respect of the international sporting community.
In fact, the CAS now handles some 600 Arbitration cases a year.
Express ‘Med-Arb’ Reference Clauses
It is important to include an express reference to ‘Med-Arb’ as part of a ‘dispute resolution clause’ in sports agreements.
Of course, it is possible, at the time a dispute arises, to refer the dispute for resolution by ‘Med-Arb’ but this, as ADR is a consensual process, requires the consent of the parties, which is not always forthcoming. One party may wish to settle by ‘Med-Arb’; whilst the other may not be agreeable in doing so.
No consensus, therefore, no Mediation.
Who will be the Arbitrator?
If it is necessary finally to invoke Arbitration to settle the dispute, where Mediation is not successful, the question then arises, in practice, who will be the arbitrator?
Will it, or, indeed, should it be the mediator?
There are pros and cons to this.
As ADR is a consensual process, if the parties expressly agree in writing, they may choose the mediator to be the arbitrator in the subsequent proceedings.
But should they do so?
Perhaps the most important point in favour of appointing the mediator as the arbitrator is the fact that she/he is already familiar with the case and the issues. But as the old adage aptly puts it: familiarity breeds contempt’.
In other words, the mediator, although endeavouring to be independent and unbiased throughout the process, may possibly have formed certain views in favour of one of the parties in the dispute. In other words, she/he may be prejudiced or biassed.
To avoid that situation, it may not be a good idea to appoint the mediator as the arbitrator, but to appoint someone else who comes to the case entirely fresh and without any such preconceptions of the dispute and how best it may be resolved.
Conclusions
Mediation is proving, in practice, to be a timely and effective form of ADR for resolving sports disputes. Indeed, the courts generally favour Mediation in appropriate cases.
Combined with Arbitration, ‘Med-Arb’, is also proving to be an effective way of resolving sports disputes.
Such a procedure is not a waste of time or money, because Mediation, if not successful, at least, Mediation is able to define the issues that form the basis of the dispute, leaving Arbitration finally to settle them.
We advise and represent clients in ‘Med-Arb’ cases and further information is available by emailing either Dr Lucien Valloni or Prof Dr Ian Blackshaw at ‘valloni@valloni.com’ and ‘blackshaw@valloni.com’ respectively.