Why Don't Sports Lawyers Embrace Mediation?
.......... If Not Even Shun Mediation?
9th April 2024
In my previous article I asked the question – ‘Are Members of the Legal Fraternity Amongst the Biggest Hurdles to Mediation?’ Just one such area where there seems to be more resistance than usual from some, is the sports industry, where I focus most of my efforts in dispute resolution as a professional mediator.
This is not to say that other commercial sectors, industries and communities whereby mediation is also a viable option in dispute resolution aren’t also subject to such hurdles and resistance from legal quarters; but on reading an article published in a CAS (Court of Arbitration for Sport) bulletin from approximately 10 years ago (‘Experience of A Sports Lawyer in Mediation’), this went to prove that not only did my observations have foundation but also that seemingly little has changed in 10 years, even though the fields of sports law and mediation have both evolved dramatically in that same passage of time.
The purpose of this article is to look more at one of the key questions raised in the aforementioned article by the author:
“Why don’t sports lawyers embrace mediation?”
Whilst I cannot take credit for the original observations and thoughtfulness of Max Duthie in the original article, it has proved to be one of the motivations to author this article. I can however share similar opinions and observations (albeit through very different eyes, and from a different professional background), and thus I wanted to offer my own perspective on the topic and the questions posed.
Awareness, PreConceptions & Misconceptions
The first thing to consider is that whilst many in the legal profession are highly educated and highly qualified, this like anyone else, does not mean that they know everything. Much the same as I wouldn’t know how to change the oil filter on a car like a mechanic, perform open-heart surgery like a surgeon, rewire a house like an electrician, alter a 3-piece suit like a tailor or care for a class of 4-year-olds like a nursery school teacher.
Yet, given the fact that mediation is closely tied to the legal world, I believe there should be a far greater understanding and appreciation of mediation by legal professionals in general, yet from my experience this is not necessarily the case with so many misconceptions and preconceptions relating to mediation.
Some of the these pre/mis-conception that I have heard from some legal professionals are often down to misinterpretation or misinformation, many are skewed if not scary, and at times blatantly incorrect when it comes to mediation. Which, when describing mediation, some have a notion of what seems to be a quasi-arbitration process, if not in some rare cases, a form of ‘counselling’.
These incorrect views, perceptions, and opinions if not rumours; can vary from the role of the mediator, the mediation process itself and the roles, duties and responsibilities of those participating in the mediation process (including the lawyers).
As I stated previously, I would have hoped that things had progressed from Mr Duthie’s experiences, and in one instance a lawyer commenting to him when considering appointing a mediator:
………. And as such I have heard similar comments, and therein lies one of the biggest pre/mis-conceptions of not just lawyers but many others when it comes to mediation: that the mediator passes judgement or rules on the outcome ………. WHICH IS TOTALLY, CATEGORICALLY AND BLATANTLY wrong.
Financial Loss
Whilst many would avoid ‘the elephant in the room’, I feel it appropriate that I tackle this ‘head on’. Thus like any other business, I acknowledge that the legal profession has to cover its costs (if not make a substantial profit), and in essence mediation does INITIALLY pose a clear threat to that ‘bottom-line’, in being able to expedite matters and resolve disputes, thus cutting legal costs for the client.
Some in the legal profession are very clear on the importance of their fiduciary duty to their client(s) in reaching a positive outcome to any legal matter (such as a dispute). As such in meeting this primary obligation to their client, they aim to resolve the issue/case as efficiently as possible by reasonable means ….. which should include mediation, where it is deemed appropriate and applicable.
Yet some in the legal profession may inadvertently focus primarily on that ‘bottom line’ and the aspect of generating ‘on the clock’ work, and thus unconsciously push their ‘fiduciary duty’ to their client to the periphery; if only with the clouded notion that having mediation ONLY as a last resort helps moves their client towards the best possible ‘WIN’, rather than avoid a ‘LOSS’.
Yet in such cases of a ‘WIN’, who is the actual winner, when all the costs and debts are totalised, and the damage caused to the likes of relationships, business interests and health of those involved are taken into account?
In many jurisdictions and territories, lawyers have strict law institute and court obligations and therefore can’t cast their duties aside. Mediation training does not usually occur in law school but is facilitated through professional programs. And as such, lawyers being specialised, would mean that many may not know mediation unless they work in an area like construction, family law, sports or neighbourhood disputes. Furthermore, if mediation is part of the pre-court (or court) process as in jurisdictions such as Australia in many instances, many take notice.
For me there is one associated observation to take into account here; and that is that most (if not all) of the good lawyers are incredibly busy. As such, mediation provides a valued asset to them in being able to move cases forward with dispute resolution, and thus arguably support and facilitate more clients for the longer term and arguably sustain a larger client and case portfolio.
Client Retention
The aspect of client retention probably isn’t as prevalent in regards to myself (or any other specialist mediator) as it would be in cases whereby a mediator is also a lawyer themselves, as I, as a mediator am not in direct competition with the lawyer representing a disputant/client.
However, in cases whereby the mediator is also a lawyer themselves, there is a fear for some lawyers that a lawyer-mediator may either inadvertently or proactively ‘poach’ their client as a consequence of acting in the mediation.
Yes, there is the possibility that in a mediation, the mediator may request to meet with the disputant(s) in private session without their legal representation being present, but in my experience, this is a rare occurrence and the legal advisers are usually present at all times when the mediator meets with the client.
As Max Duthie rightly highlights in his CAS article, if a mediator were to have time to ‘poach’ a client in a dispute, they are either a ‘miraculous mediator’ or are not undertaking the mediator role with the expected due care, attention and consideration that is required or expected. This is because, with all that they have to consider from all parties involved as well as managing the mediation process and maintaining a mediator code of conduct; the mediator has no time for ‘business development’ or the ‘poaching’ of clients.
Ego, Adrenaline, Reputation & The Desire to ‘Win’
As I mentioned in my previous article, there is a necessity for lawyers to maintain a winner adversarial, if not combative mindset in their role. Arguably not only for the interests of their clients, but also in the eyes of their peers and for their own personal self-worth and profile.
Dare I say, the bigger the case, the bigger the lawyer and the bigger the rewards from getting that all important ‘win’ for their client (and themselves). With that in mind the perception of a lawyer who opts to seek mediation in a case to establish the best for their client (on multiple levels) may well be perceived (INCORRECTLY) as weakness by some.
Whilst I focus on this topic through a sporting lens, it seems apt to draw some sporting analogies given the competitive mindset that those in sport and law may share. As such, there does come a time when a sportsperson in their own arena will save energy for the next heat of a race, or settle for a 2-2 draw with 2 minutes to go.
Poor Mediation Experiences & Reports
I have to admit that the poor impression and reluctance some in the legal fraternity have towards mediation is often justified, after experiencing flawed mediations or indeed flawed mediators.
I am aware that some mediators will take on any dispute; if not blinded by the belief that they have a duty to take it on, a blind faith in mediation succeeding whatever the case, or even in some cases that no matter the outcome they are going to get paid.
It is my opinion that a mediator has a duty to decide whether they believe the dispute is likely to be benefitted, if not resolved, through mediation. The dispute, the circumstances, the disputants, the legal representatives who are party to the dispute and even the mediator themselves are all crucial factors for a mediator to decide whether mediation (or them mediating) is viable. Some will say yes, some will say no and many will share any reservations they have with the lawyers and disputants involved in the dispute.
Yet, the legal profession should not blindly believe the myths, rumours and failings of past mediations ….. and if that was the case, would it not be right that the same could be said about a loss of faith or belief in arbitration, litigation, the law or even a lawyer if the case had a negative outcome.
The question should first be asked, why did mediation fail? Was it the mediator, the process, one of the disputants (or both), the lawyer (or both), a witness or even that mediation wasn’t suitable in that instance from the outset?
Correct & Incorrect Applications of Mediation
Mediation is a great asset and tool for most good lawyers, and any party in a dispute, yet mediation is not flawless and has its weaknesses and limitations – and these shortcomings should be recognised by anyone with a true understanding and appreciation of mediation (whether lawyer or mediator).
As mentioned previously, a dispute may have factors that weaken the case for mediation or make mediation unviable. This includes categories of disputes in sport whereby mediation is not feasible, such as regulatory disputes or competition disputes.
However, mediation due to its honesty in not being applicable in some disputes, has led to some in the legal profession blindly casting it aside as an option, despite it clearly being an option to make a difference for not only those in dispute but the lawyers and legal advisers representing and advising.
I hope that mediation will continue to open the eyes and ears of a growing number in the legal fraternity as to its strengths and applications, particularly in sport. As such, an invitation is there to discuss mediation in greater depth with any legal professional whom demonstrates an interest from reading this article and has an open-mind to discuss mediation with me further.