FIFA's Mediation – ‘True’ Mediation or Arbitration ’on the Cheap’?
12th July 2023
Whilst I initially welcomed the announcement by FIFA that they were implementing mediation into their regulatory framework for the resolution of football disputes (even though it ‘trod on my toes’ commercially), over time, observing the various announcements by FIFA, as well as the resources released in regards to FIFAs ‘mediation’, I have started to question amongst other things:
- FIFA’s approach to mediation
- FIFA’s application of mediation
- FIFA’s aims with mediation
and
- FIFA’s general understanding of mediation (or lack of)
I openly accept that mediation has a variety of ‘flavours’ with different mediators varying their approach; based on such things as their geographic location, where they trained, their background, personality, accreditation, experience etc …. most mediators try to maintain the ‘core pillars’ and commonly accepted principles of mediation practice, as well as the primary benefits of mediation
FIFA ‘Mediation’ - Risks of Devaluing the Core Benefits and Values of Mediation
Following the publication of FIFAs mediation guidelines in February 2023, and also some additional commentary and information gained from various webinars etc, I have developed serious reservations over time when it comes to FIFAs ‘mediation’ model and whether it is ‘true’ mediation or just at best; a hybrid combination of ‘institutional-evaluative‘ mediation or ‘med-arb/arb-med‘, and at worst a bumbling attempt at ‘arbitration on the cheap’; which is unfortunate following my initial enthusiasm.
Confidentiality
Probably the most important aspect of mediation (well for me at least, and a core element of my mediator training) is that of confidentiality in all aspects of the mediation process. Even to the point that; once mediation has concluded (either with or without a settlement being agreed), the mediators notes and all other applicable resources are destroyed. The matters of all proceedings and discussions remain confidential unless expressly agreed by all disputant parties. With the only exceptions being where there may have been declarations of criminal activity or the mediator adjudges something mentioned that may be a safeguarding issue.
In fact, for my CMC (Civil Mediation Council) and IMI (International Mediation Institute) assessment we were repeatedly warned that even the slightest hint of breaching confidentiality would result in us failing the assessment. Subsequently, with a breach of confidentiality in professional practice as mediators, we would risk losing any form of ‘accreditation’ with these professional bodies.
So, with this in mind it is worth considering the number of individuals (e.g. FIFA’s ‘General Secretariat’) that under FIFAs declared mediation model, will handle case notes, settlement agreements and other aspects in regards to a supposedly confidential FIFA mediation.
Personally, I believe the objective of mediation is reaching a sound resolution that is agreed by those parties to the dispute, and as such, it is they that should control (jointly) who else has knowledge of the process, and even the terms of the settlement.
Control
This leads nicely onto the element of ‘control’, another key benefit and ‘pillar’ of mediation. As I was taught during my mediator training; ‘the mediator is in control of the process’ whilst ‘the parties are in control of the outcome’. However, it would seem that under FIFAs interpretation of ‘mediation’ this is not the case, and FIFA are seemingly largely in control of the outcome, as well as the process.
The first warning sign here is the comment in FIFAs guidelines that ‘the FIFA general secretariat will consider, and determine in its absolute discretion, whether it is appropriate to mediate the dispute between the parties’. Whilst I would argue the parties could still go to an external independent mediator, this is FIFA seemingly exercising control over parties who may want to mediate but then MAY believe they are not permitted to (because FIFA says so). Which when ‘coupled’ with a limited list of FIFA appointed mediators, effectively ‘doubles-down’ on this factor of control and inhibition.
A second area to note is that; any ongoing FIFA ‘Football Tribunal’ related matter shall not be paused for the FIFA ‘mediation’ process to be undertaken. Whilst I acknowledge some of FIFAs reasoning for this (i.e. avoid parties delaying proceedings), this again is a questionable approach and could be addressed differently, not least as other civil/commercial legal proceedings are often paused (e.g. ‘Tomlin Order’ in England & Wales, where court action is ‘stayed’) to allow the parties the opportunity to resolve the dispute by another means, such as mediation.
However, the biggest ‘red-flag’ for me in terms of the disputants being jointly in control of the outcome of mediation with FIFA’s ‘mediation’ approach, is that of ‘ratification’ by FIFA of any settlement agreement mutually agreed by the parties. Mediation rarely (if anytime) has ratification of any settlement by a third party, it is not the job of the mediator to ratify the settlement as ‘just’ or ‘fair’, and neither should it be that of anyone else ….. it should be the parties in dispute to agree the form of any settlement (so long as it is legal).
Expediency
With this ‘spectre’ of FIFA ‘ratification’ looming over FIFA’s seemingly distorted ‘Interpretation’ of ‘mediation’, it again damages another key benefit (and ‘pillar’) of mediation …. in that mediation is meant to be quick and simple, whereby disputants resolve their dispute without the ‘blessing’ or ‘ratification’, or most importantly ‘judgement’ of someone else.
Although I have heard little information as to how long FIFA envisage a dispute will take to be referred to ‘mediation’ and subsequently how long it will take before a mediation is undertaken, these are all unnecessary delays to what should be an expedient and straightforward form of dispute resolution. The fact that a dispute has to first be referred by FIFA and then approved by FIFA and various other parties (including the disputants) following the matter first going to the Football Tribunal, we can guess it is far from a quick process in resolving any dispute.
What has however been mentioned by FIFA representatives, is that a settlement agreement from a FIFA mediation is envisaged to take 1-2 weeks to THEN be ratified, (yet another unnecessary delay) which again draws into question the expediency (or lack of) of FIFAs ‘mediation’. This is especially prevalent when we consider that in mediation it is not unheard of for a mediation to be completed from approach, arrangement to settlement in a couple of days, so given the speed at which the football industry moves at times, resolving football disputes is an urgent matter (e.g transfer windows) where delays of days can be very costly, let alone weeks or months.
Judgement and Impartiality
So, in regards to the aspect of ratification by FIFA (Football Tribunal) of settlement agreements concluded under FIFA ‘mediation’, this may also be considered another aspect that is not part of ‘true’ mediation; arguably with someone effectively passing judgement? Granted this ‘judgement’ is indirect and may well be viewed by some either as a judgement of the parties or the dispute, but it is most definitely a judgement of the settlement (of which the former are both part of).
So firstly, with this in mind it is perfectly plausible that after believing they have reached a settlement, and both parties being satisfied with having their dispute resolved, that FIFA don’t ratify the settlement agreement and effectively ‘reopen old wounds’ of animosity, frustration, aggravation and reinvigorate a dispute – when in mediation it is the parties who agree on the settlement and no-one else.
Yes, I can hear some arguing at this point, well this if FIFA’s mediation process therefore it is FIFAs rules and regulations! I can accept that (to a point), however if you are going to apply rules and regulations (that are not national law or legislation) and have a 3rd party (in effect a judge or arbitrator) to ratify a settlement agreement – THAT IS NOT MEDIATION …….. it is more-so arbitration or even arguably ‘Med-Arb‘ or ‘Arb-Med‘ (but even that is a ‘bit of a stretch’).
Flexibility
One aspect of mediation that I find fascinating (and often of most value), is how flexible it is in allowing parties to a dispute the freedom to develop their own resolutions creatively and with very few boundaries beyond that of things that are illegal or may result in personal harm to someone.
However, this seems to be an aspect that FIFA have ignored or even roundly objected to, and that all settlements from FIFA ‘mediation’ must meet with FIFAs approval and are within FIFA’s rules and regulations, with comments from FIFA officials (in reference to FIFA ‘mediation’) such as:
“parties trying to reach settlement agreement may get more creative than what our regulations allow”
This again undermines FIFAs model of ‘mediation’, and they are in fact bordering on some strange mutated version of arbitration. Surely if FIFA want to help football participants to resolve their disputes, without the direct intervention of the likes of the Football Tribunal, the objective should be for the disputants to resolve their dispute by any legal means.
In addition to this there is also (at the time of writing), a question mark as to whether FIFA ‘mediation’ will facilitate (or allow for) partial settlement of a dispute? This again, I would argue is a key benefit of mediation, in providing a flexible means to resolve some aspects of a dispute and thus provide for partial resolution and progression. Subsequently, this may well expedite remaining aspects of the dispute that then still need to be resolved through such means as arbitration etc.
Cost (saving)
Some people may well be reading this and shouting “but its FREE!”, but then again is it really free? The cost of the mediator has to be covered somewhere and that is subsequently paid for by FIFA, yet FIFA are seemingly reluctant to say how much they are paying their mediators, and it also appears they have no quantifiable method of measuring how long mediations shall/could take. This begs the question(s); what is the cost, is it cost effective, or is it just ‘arbitration on the cheap’ to cut FIFA costs and liabilities elsewhere?
Mediation in my opinion needs disputants to have ‘skin in the game’, quite often if some people aren’t paying for something they will see little or no value in it. Does making mediation ‘free’ lend itself to an environment and attitude for participants to reach a meaningful and robust settlement, or does it just create a ‘false attitude’ of good faith. Pro bono mediation is something I covered in a past article ‘Pro-Bono’ Mediation: Can It Really Work Without ‘Skin in the Game’ (especially in professional sports and football)?
Conclusions
Some may conclude that my appraisal of FIFA ‘mediation’ is unfair, but having measured it against the values and principles of my own training and those available in numerous publications, articles, papers as well as guidelines issued by organisations such as IMI, CMC, European Commission and even CAS/TAS (Court of Arbitration for sport), I think I am justified in many of my observations and subsequent concerns.
Maybe it is just a ‘sports thing’ in the misinterpretation of mediation, as FIFA are not alone in this, given that other sports related bodies also misinterpret ‘true’ mediation, as is demonstrated by another prominent body involved in English sport and football disputes.