What is Mediation in Football?
Mediation in sports disputes is still very much in its infancy in football, giving way in many cases to the well established FIFA dispute mechanisms and mediations close relation – arbitration, with arbitration being well establish in football regulations for disputes and the psyche of participants.
What is Mediation ?
Different mediators and ADR agencies use different approaches and techniques to mediation, all of which are applicable and have their own successes. The main types of mediation recognised by most are evaluative, facilitative and transformative.
Currently, most of our focus with football mediation is through the application of facilitative mediation, whereby the mediator facilitates ongoing discussion and investigation with the disputants (both collectively and individually) to work towards a settlement agreement, which the disputants will develop on their own mutually agreed terms.
Whilst facilitative mediation is the mainstay of our approach, we also deploy, at an appropriate time, evaluative mediation to resolve a dispute – although we are always hopeful a facilitative approach will allow disputants to come to a mutual agreement.
We apply evaluative mediation to football disputes which relate to Football Agents and those disputes that may have a football agent (intermediary) dimension. In -house experience and knowledge of football agent matters, rules and regulations stretching back many years, often allows us to deploy ‘evaluative’ mediation should the ‘facilitative’ processes fail to progress matters towards an satisfactory agreement.
The mediator in such ‘evaluative’ mediation will employ a more assessment-based approach in assessing the dispute and where appropriate offer some opinion on possible approaches or solutions which the parties may wish to progress, discuss further or alternatively dismiss. However, once again the mediator remains totally independent and impartial and the settlement is for the disputants to decide upon.
This alternative dispute resolution mechanism (mediation) allows the parties to put an end to their controversies with the assistance of a mediator in a swift and efficient manner.
As part of the constant effort to modernize and provide efficient service to parties and stakeholders, FIFA has recently included the possibility to solve the parties’ disputes through mediation.
Comparison
The typical comparisons drawn for mediation are those with arbitration, litigation and negotiation and although these are similar in some ways, in others they are quite different.
Currently, most of our focus with football mediation is through the application of facilitative mediation, whereby the mediator facilitates ongoing discussion and investigation with the disputants (both collectively and individually) to work towards a settlement agreement, which the disputants will develop on their own mutually agreed terms.
Arbitration and mediation are probably the closest
relations, and are sometimes used in tandem with the applications of such approaches as Med-Arb and Arb-Med.
Our approach is totally that of mediation as we believe the distinct duties of an arbitrator and mediator are quite different with the arbitrator having their primary duties to the law, rules and regulations and ultimately be making a judgement (if not award on the case), whereas a mediators duty is to the process to enable the disputants to reach an agreement.
When looking at disputes in football, most typically refer to mechanisms similar to arbitration (or arbitration itself) whether it be FIFAs dispute mechanisms, CAS (Court of Arbitration for sport) or through a national football association such as The FA in England and their ‘Rule K’ procedure.
Suffice to say that a 1-day rule ‘K’ arbitration hearing may cost each disputant in excess of £10,000 (increased by 50% if a 3-person panel is appointed), with other parties privy to the case details and take many weeks if not months to be heard. Whereas a one-day mediation could possibly be undertaken in a matter of weeks (if not days), cost as little as £750 per disputant and just the disputants, their advisers and the mediator(s) are privy to the case information.
The Mediation Process
In most of our mediation cases we like to meet or engage in pre-mediation meetings with both the disputant parties and where necessary, their legal advisers.
This enables us as mediators to not only get an overview and understanding of the dispute but also build an understanding the disputant and how the dispute impacts on them.
We also find it a very useful time to answer any questions that the disputants may have and to allay any feelings of in trepidation.
For the mediation itself, typically we employ a mediation process that has four key phases :
Phase One - 'Foundations'
In most cases the mediator(s) meets with the disputants and their legal advisers (where appropriate) in a joint session.
The mediator explains the whole mediation process and answers any questions that the participants may have, along with completing any joint pre-mediation documentation.
Phase Two - 'Listening & Hearing'
The disputants will (in turn) be given the opportunity to make a brief statement in their own words explaining the situation and such factors as to how the dispute has (and is) affecting them. This is a time for the disputants to be heard, whilst also giving them an opportunity to listen to the other disputant in a neutral and unchallenged manner.
* In some disputes the mediator may take the decision (or on the advice of the disputants legal advisers) to alter Phases One and/or Two, if not delay any joint-session until some basis of minor agreement has been established between the disputants.
Phase Three - 'Private Consultation'
This is where the disputants meet independently with the mediator in private caucus, after being assigned their own space with their advisers during the mediation process. The information shared with the mediator by the disputant at this stage will remain strictly confidential, unless permission is granted by the disputant for the mediator to share that with the other disputant.
The mediator will traverse between the two disputants in private caucus to discuss the matter further, uncover more information and work towards a settlement agreement between the parties and thus develop the grounds for a resolution agreement that ultimately resolves the dispute.
Phase Four - 'Agreement & Closure'
Once the mediator believes that the disputants have reached an agreement on which they can agree and ultimately resolve the dispute, the task shall be assigned to the legal representatives (either jointly or singularly) or an independent legal adviser to draw up a settlement agreement.
The mediator may then reconvene a joint-session with both disputants and their legal advisers to sign the settlement agreement and conclude a successful mediation.
Please Note :
It may be necessary dor the mediator(s) to return to 'Phase Three', should either party change their stance on the agreement or seek further discussion to resolve the dispute.