A sporting result?

Mediation has been around for a long time. It has grown in the UK following the Woolf reforms, has been promoted in the EU, and is widely accepted as a fully fledged member of the ADR family. Sporting disputes are one area where mediation has potential. Its advantages, now well known, apply in the sporting context.

Litigation is a public process and can drive huge media interest and speculation. On the other hand, mediation is confidential. There are some issues which a governing body may prefer to explore in mediation rather than in a public investigation with its attendant publicity risks. The controlled, confidential context of mediation may be more suitable, it is suggested, than a traditional inquiry, grievance procedure or disciplinary complaint.

Speed and flexibility can also be achieved. Sport demands speedy resolution lest disputes become moot; disputes over selection, relegation/promotion and event sponsorship are examples. Dwain Chambers’ dispute with UK Athletics illustrates the difficulties of adapting the court process to sporting deadlines.

Parties determine the process, which can be as informal or formal as circumstances require. It is more inclusive than adversarial proceedings, as the parties play a more central role, and are less likely to hide (or be allowed to hide) behind their advisers, thus creating a more level playing field.

Solutions can be much more creative than the outcomes available in adversarial proceedings, and crafted to reflect the human, emotional drivers particularly prevalent in sports disputes. Suppose John Terry and Wayne Bridge had agreed to the mediation reportedly offered by the PFA?

Given the foregoing advantages, mediation can also be very cost effective. The cost of dispute management time for governing bodies, clubs and participants can be very high. Time involved in a dispute means time away from training, performance and delivery.

Constructive, not destructive

Participants and partners alike have a genuine interest in maintaining competitive advantage and balance. Winning at all costs, though easy to say, is dangerous to do. Interdependence among participants is high.

Perhaps the most advantageous aspect of mediation for sports disputes, therefore, is that it focuses on the future, rather than the past. The aim is to identify a working solution, rather than simply apportion blame. That does not preclude a party accepting blame. The process is designed to resolve, preserve and maintain parties’ relationships between the parties. Disputes in sport can be very destructive, to team balance, performance and commercial values.

For example, an American study of salary disputes in baseball (where arbitrations take place during the close season), reviewing Major League statistics between 2001 and 2004, suggested a trend of diminished player performance the year following salary arbitration.

Rather than an investigation or disciplinary panel deciding what happened and who was in the wrong, a mediator can work with the parties to keep them focused on the future, whether that means improved medal performance or increased broadcast values.

Why not mediation?

It is recognised by all involved in dispute resolution that mediation is not suitable for every dispute. There may be, for example, a need to establish legal precedent, issues regarding authority to agree certain outcomes, a need for immediate action/enforcement, or cases where parties do not want to settle. That applies also in sporting disputes.

Perhaps the most obvious example is disciplinary or doping cases. It seems clear that with cheating, doping or other serious offences, it would be contrary to the interests of sport, and the public at large, to resolve issues privately by mediation. “Bloodgate” and “Crashgate” had to be pursued in the public and sporting interest. Much of the work undertaken by the World Anti-Doping Agency could be undone if cases were not pursued in accordance with the code. That is presumably why the Court of Arbitration for Sport mediation service excludes all cases related to disciplinary issues and doping.

Some disciplinary cases may, however, be suitable for mediation. For example, cases involving disciplinary complaints against children, relationship disputes within teams and minor infringements.

Sports bodies already exercise their discretion in deciding whether to pursue disciplinary cases and whether to accept a plea bargain. With rules in place, there should be nothing to stop them exercising their discretion (on a proper analysis of the circumstances) to put some cases to mediation before commencing formal proceedings. Many professional regulatory bodies follow this model (including the Scottish Legal Complaints Commission). The resources saved could be redirected into pursuing more important cases or back into the sport itself.

While some sporting disputes may not be suitable for mediation, the majority will be. The challenge is to ensure that the option is considered.

The alternative, as we can see from Modahl v British Athletic Federation, can be destructive and can change the face of a sport. The onus is on those involved in sport, including professional advisers, to consider when mediation may be appropriate, and commit to it when it is.

• Michael Nicholson, Partner, Harper Macleod LLP