Pro-Bono Mediation: Can It Really Work Without ‘Skin in the Game’?
(Especially in Professional Sports Such As Football)
7th June 2023
The case for many mediators is not only to get in the practical work (mediations) for the purposes of maintaining (and attaining) accredited/qualified status with the likes of the CMC (Civil Mediation Council) and IMI (International Mediation Institute), but also the opportunity to fine tune their own skills and keep ‘fresh’ and informed in their approach to mediation. There is of course the fact that for many it is their job, a profession and the means to put ‘food on the table’, if not ‘keep the wolf from the door’.
From my experience many specialist mediators (not necessarily those who use it as a supplementary income to another job, or act as mediators as another ‘string to their legal-profession bow’ are generally good people who are passionate about what they do, with a keen focus on helping people resolve issues and conflict. Some I would say would be happy enough to do the job ‘free of charge’ if circumstances allowed them to, and this is demonstrated by so many ‘mediation clinics’ and community-based mediation programmes that are run, often free of charge.
My Quandary Over Offering 'Pro-Bono' Mediation
I suppose the term ‘pro-bono’ is open to interpretation and means different things, to different people (i.e free of charge, subsidised, reduced/nominal cost, expenses only), and generally it is something offered by professionals in various industries to non-profit organisations and to those who may find it difficult to afford professional services (hence the translation of the latin “pro bono publico”, which means “for the public good.”).
So, with this in mind and my own deliberations over recent months, it has left me in somewhat of a quandary over the place that pro-bono mediation has; is it realistic or is it a waste of time in most cases?
Whilst I have thought on many occasions about offering ‘pro-bono’ mediation to some groups and individuals who fulfil certain criteria, there are so many nagging doubts in my mind over how feasible and effective it would be, and whether offering such a service in many cases would be doing not only myself, but also the concept of mediation and the mediation profession as a whole a disservice?
‘Speed-Bump Mediation’ (free time limited mediation)
In England and Wales, smaller claims/disputes can apply to the ‘The Small Claims Mediation Service’ for a free time-limited mediation for some disputes. However, like all mediation it is an optional approach to resolving a dispute, and as such ‘good faith’ is required to be shown by all participants to ensure the most is made from the service.
So why do I refer to it affectionately as ‘speed bump’ mediation? Well for this I will reference my own analogy of:
“you are driving down a dimly lit road which has no road signs and you are within the speed limit.
Your passenger asks you to slow down, which develops into an argument (dispute) as you are doing nothing wrong, but you don’t realise they are a nervous passenger.
You then drive over a speed bump, that jolts the car and maybe makes you realise not all is as it seems. So, to save damaging the car at a more severe speed bump further down the road, you decide to slow down.
THUS, it resolves the argument (dispute) with the passenger, you both get to your destination safely and you save further damage to yourself, your passenger or the vehicle.”
For me the ‘speed-bump’ is that short attention grabbing ‘small claims mediation service’, enough to make the realisation of something you weren’t aware of, or an alternative option – resulting in a resolution that benefits both parties (and possibly connected others).
Personally, I think it is a great offering by the courts and a primary example of where ‘Pro-Bono’ mediation can work, not only in terms of saving on the court’s own limited time and overstretched resources, but also the fact that it gives parties in dispute a cheaper option than going to court (in terms of both time and money). Even though mediation is, in most cases a lot cheaper than litigation and going to court, it is still arguably not so cost effective for many lower value ‘disputes’ (financially).
Is ‘Good Faith’ Enough for Successful Mediation?
Whilst the best endeavours of any professional mediator ‘worth their salt’ is to get the parties in dispute to enter into mediation ‘in good faith’ and wanting to seek a resolution to the dispute, this ‘good faith’ cannot always be guaranteed by both parties (or even those sent to represent them and their legal advisors). Granted, some mediators (hopefully very few) will be happy to take the money once an ‘agreement to mediate’ is signed. Yet I am confident from those fellow mediators I have dealt with, that this is not the case and (like myself) they look to take the time necessary to undertake a meaningful mediation process with a meaningful and genuine settlement agreement concluded.
Yes, I would like to think that ‘good faith’ is exhibited by all when entering into the mediation process; yet, sadly I am too old and cynical to accept that whilst many would exhibit good faith, there are those who would not. Added to this are those who don’t fully understand the mediation process, its aims, its benefits and their role in achieving a settlement to the dispute.
As such, after much consideration I have come to the conclusion (at this time) that mediation needs more than just ‘good faith’ in many cases, especially those in the sphere of ‘Civil and Commercial’ (C&C) mediation. Arguably, in such specialist mediation areas of ‘family mediation’ and ‘SEND mediation’ the aspect of ‘Good Faith’ is often backed up by an element of necessity, if not desperation to get matters resolved for the best interests of a particular person/party involved, or even one connected to the dispute BUT maybe not one of the parties in dispute.
Do Parties in Dispute Need ‘Skin in the Game’ for Successful Mediation?
However, when it comes more to the areas of C&C mediation, the words of my mediation mentor ‘ring in my ears’: that those parties involved in a dispute and entering into the mediation process need to have ‘skin in the game’ as well as demonstrating ‘Good Faith’, and whilst this may sound quite mercenary when taken out of context, it is a very realistic and practical approach to have towards mediation.
Whilst many mediators are well-versed and trained in getting disputant parties in a dispute to ‘open-up’ and fully engage in the mediation process, sometimes even the most adept and experienced mediators will have little success in getting someone to participate who simply doesn’t want to, albeit signing a form and saying they have entered into the mediation process in ’good faith’. Not least as it could just be a ‘box ticking’ exercise for them to demonstrate that they have ‘tried’ mediation for the benefit of a costly litigation (or arbitration) hearing in the future.
So, with this in mind it is important to highlight the ‘skin in the game’ (they, the disputant parties have’, either by the time they are spending at the mediation or even by highlighting the ongoing costs they have with the dispute ‘rumbling on’ or the costs if they were to lose in court.
Quite often this ‘skin in the game’ can also be highlighted effectively by the projected legal costs if mediation failed (or if negated altogether), in some cases from the legal costs already incurred from the dispute before any such hearing (whether mediation, arbitration or litigation in court) …. something I would hope most lawyers and legal professionals would acknowledge (and if NOT, then I would welcome the enlightenment as to the reasoning to get a better understanding of their perspective).
As such, the easiest way to ensure the parties to a dispute have ‘skin in the game’ is to charge for the mediation, after all it is a professional service, often by trained professionals who make great efforts and take the time to ensure best efforts are made to reach a successful resolution and binding settlement agreement. You do not have to go far to find anyone involved in mediation, the legal profession, the court/judicial system or anyone who has been a party to a professional mediation, to establish how much cheaper mediation can be than the alternatives of arbitration and litigation.
Sharing the Costs of Mediation
Whilst the more ‘adversarial worlds’ of arbitration and litigation see the parties/sides in dispute bearing their own individual legal costs (subject to reclaiming costs from the other side following a judgment/ruling), in general with mediation the costs of the mediation are shared equally between the parties in dispute. Granted there are mediation cases where one party to the dispute agrees to pay all (or the majority) of the mediation costs, but again this leaves me somewhat perplexed at the notion of one party having more ‘skin in the game’ or the underlying thought (or even accusation) that the independent mediator can be swayed or is biased to one party or another, rather than the mediator’s duty being solely to the mediation process alone.
In my own mediation specialism of sport and in particular professional football, the applicability of one party paying the costs for mediation is very prevalent, as in some cases it is very much a matter of ‘the haves’ and ‘the have nots’ being in dispute – whether this be down to advantages of knowledge, leverage, influence and financial resources etc.
“Professional Sports (especially Football) Can Easily Afford Mediation ……… Surely?”
It is understandable that given the profile of professional football (e.g. the FIFA World Cup, UEFA Champions League, English Premier League) that many believe all of football is ‘awash’ with huge financial resources, but further knowledge of the industry and the further you go down the ‘footballing ladder’ there are far more of the ‘have nots’ than the ‘uber-rich’ participants.
In many cases these participants lower down the ‘football food chain’ when they get into a dispute cannot afford (time, money, reputation etc) to have it resolved in a fair and proper manner. Whether this be because they are restricted by the costs of professional help and advice (e.g. legal) or even just the footballing ‘red tape’, that affords them seemingly limited options of recourse and/or settlement (see ‘Does Football Avoid ‘Airing its Dirty Washing in Public’ With Fixed and Prescribed Dispute Resolution Options’).
It would take far too long to go into detail on the various examples of where such football participants are limited in their options should they get into dispute and may well benefit from ‘Pro-Bono’ mediation. Just one such example, is that of young players released from Football Club Academies in England (as I covered in the article ‘Mediation Can Help Give Young Footballers a Second Chance’), and whilst I would like to assist in such cases it proves difficult to evaluate where such ‘pro-bono’ mediation services would be conducive to successful mediation proceeding ….. should one or both parties to such a dispute, not have adequate ‘skin in the game’.