Why Should Sports Lawyers Embrace Mediation?
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16th April 2024
Of the series of 3 articles looking at the testing relationship that mediation has with some in the legal fraternity (notably sports lawyers), this final article is probably the easiest and most straightforward for me to write.
One of the main reasons for this is that the benefits of mediation are easy to identify and in essence can be applied to most disputes (whether in the sports industry or elsewhere). However, as I highlighted in the preceding articles, it requires both the parties in any dispute, and more importantly their legal representatives to have:
- Open minds to the concept of mediation,
and a - A true and accurate understanding of mediation.
- Open minds to the concept of mediation,
Although I don’t want to necessarily ‘teach granny how to suck eggs’ or be labelled as ‘stating the bleeding obvious’, it is important to strip back the benefits of mediation to the very basics, so as to address the various inaccurate perceptions, misconceptions and preconceptions that too many in the legal profession possess (and profess) about mediation.
The Role of the Mediator
As I highlighted in one of the preceding articles one of the biggest misconceptions is the role of the mediator, and somewhat understandably the ‘line gets blurred’ between the role of a mediator to that of an arbitrator – given the ADR join between the two processes.
The important thing to remember is that the role of the mediator is to primarily facilitate and manage the mediation process, they are by no means there to pass judgement let alone enforce a ruling of any type (unlike an arbitrator).
I primarily try to employ a ‘facilitative’ mediation method, and on rare occasions (and where my knowledge allows), I may revert to a more ‘evaluative’ mediation approach; but even in these cases the mediator should and must always remain neutral.
**TAKEAWAY** :
If your client does not agree with the settlement or outcome of a mediation … they can walk away!
Neutrality
As I just mentioned, the ‘neutrality’ of the mediator is paramount to the mediation process, some mediators may not even ponder the case details prior to the mediation, so they can be totally impartial from the moment the mediation starts; whereas I prefer to try and develop a thorough and neutral understanding of the background to the dispute itself (not the disputants).
The motivation by a disputant (or their lawyers) to choose a mediator based on the theory that they have a better chance of success, is greatly misguided, and ultimately to me highlights a flaw not only in their understanding of mediation but also potentially a flaw in the mediator themselves.
Likewise (and on a personal note), one of my frustrations is the objection to a proposed mediator based on their past role, as quite often a past role does not bring bias to the mediation, but expertise and knowledge in helping to achieve a successful mediation.
So, in summary, the mediator is not there as a judge, to form opinions or make an ‘award’, and in essence the outcome is in the hands (hearts and minds) of the disputants (if not ALSO their legal advisors, to an extent).
**TAKEAWAY** :
The mediator does not pass judgement; they do not rule in a lawyer or their client’s favour …… or against it!
Expediency
Given the professional nature of law and the processes that apply, most in the legal profession will acknowledge how long some matters can take to be heard (let alone resolved), especially with a reliance on 3rd parties at times to progress matters.
Litigation or even arbitration, when reaching an outcome can take a frustratingly long period of time, which in sports can make a huge difference given the ever-changing landscape and the impact time can have on such factors as competition(s), deadlines and sporting calendars.
Mediation on the other hand can be deployed at very short notice, and a resolution could be reached in a matter of days from the point at when there is an agreement to mediate.
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.
**TAKEAWAY** :
A mediation can be filed and completed in a matter of days with the wilful participation, availability and assistance of all parties involved (i.e. disputants, adviser, mediator(s).
NOTE : mediation CAN also be done remotely.
Costs
The nature and expediency of mediation makes it an extremely cost-effective method of dispute resolution when compared to typical arbitration and litigation. It reduces court costs, legal costs, administrative costs and the time lost by all involved in the dispute process.
The costs are (or should) be shared equally by the parties to the dispute and mediators will usually endeavour to fix these costs in advance.
Whilst this factor (along with the factor of the expediency of mediation) may leave some lawyers, barristers and clerks worrying about that chargeable time and the subsequent ‘bottom line‘; the ability to bring a dispute to a close quickly and cost effectively, reflects well on the legal adviser in the eyes of the client (and will often be highlighted by the mediator).
**TAKEAWAY** :
The costs associated with mediation are considerably less than those associated with the likes of arbitration or litigation.
Strengthening Client Relationships, Relationships & Longevity
With that thought of losing out on chargeable hours and a diminishing ‘bottom line’, I would say to any legal professionals to consider the ‘flipside’ of that and how it actually benefits them in the long term, rather than secure short-term gain if only for longer hours.
A dispute resolved for a client quickly and cost effectively through mediation results in a happy client rather than one worried about the mounting costs – a client who is then more likely to return to the lawyer who advised them to try mediation and thus brought a dispute to an end. With that dispute at an end the client can move forward, as can the lawyer to tend to other paying work and potentially facilitate a bigger client, case portfolio and more productive ‘bottom-line’.
It is also worth adding to this that the lawyer during the mediation can still charge for their time, and what is often forgotten is that during the mediation process (in the absence of the mediator), the lawyer and client will work together and that thus can build on and strengthen that client-lawyer relationship for the longer term, whilst the lawyer has a ‘captive’ audience to demonstrate their value and worth to the client.
**TAKEAWAY** :
Mediation gives legal advisers time and opportunity to develop stronger and longer lasting relationships with clients, as well as free up chargeable hours for others.
Creativity For Resolution & Solutions
The certainty and restrictions afforded through the law, with the likes of litigation and/or arbitration is key, yet can arguably be restrictive in dispute resolution. The awards and costs once a judgement is finalised are often limited to a financial award or even material assets, which is restrictive and ultimately a very blunt outcome.
Yet with mediation, the settlement (or awards as such) are adjudged and agreed on jointly by the parties to dispute (with the advice of their lawyers), and as such an element of creativity can come to the fore to reach a meaningful resolution and acceptable outcome for all.
This leaves the opportunity, for example; an apology (whether public or private, written or spoken), a renegotiation, or even an enhanced future working relationship as potential resolutions to a dispute.
And thus, with such variations available, it not only leaves a resolution more likely but also an opportunity again for the legal advisers to demonstrate their value and creativity with possibilities not afforded from the likes of litigation.
**TAKEAWAY** :
The means of settlement are largely unrestricted (i.e. not just money and material effects) increasing the potential for an agreeable settlement and the opportunity for legal advisers to be creative with solutions.
Not Necessarily a 'Win', But Avoids a 'Loss'
Whilst some in the legal profession may be distracted by their ‘win-loss ratio’, the ‘size’ of the award they secure for their client, or even just ‘grinding their opponent to dust’ in court – there remains the key element of fiduciary duty and acting in the best interest of the client.
Ultimately, the award of a court does on most occasions effectively result in a ‘winner’ and a ‘loser’, and in some cases the ‘winner’ will be awarded more or less than they expected (especially when considering their costs to ‘win’).
Yet with mediation there is no ‘loser’ (which may disappoint some lawyers), and arguably in some cases there are multiple ‘winners‘, as both parties have to agree on the terms of the settlement whatever it may be.
Ultimately, whilst the lawyers may not be able to claim a victory, both disputants could well see it as a victory (which reflects positively on their legal advisers).
**TAKEAWAY** :
Focussed on the wants and needs of the client in the outcome, mediation doesn’t result in a ‘loser’.
Confidentiality (and Without Prejudice)
Particularly in the sports industry, the need for confidentiality is crucial. Whether this be for the purpose of not ‘losing face’, attracting scrutiny (press, governance or public etc) or admitting fault; and this is why sports disputes rarely find their way to the courts from litigation, or reside in private arbitration processes controlled by the likes of the sports authorities and the sport’s governing bodies.
As such, mediation also maintains strict confidentiality throughout the mediation process, whether this be the mediator, the parties to the dispute or their legal advisers once an ‘agreement to mediate’ is completed. Only if the disputants JOINTLY agree to release this information (and with the permission of the mediator) can the details of the mediation be made available to others.
In addition to this, it is worth noting that ‘true’ independent mediation is totally confidential (unless otherwise agreed). Whereas other authority-controlled arbitration and mediation mechanisms (especially in sport) often involve a third party scrutinising the process if not needing them to authorise the settlement (which is NOT a facet of ‘true’ independent mediation).
The mediation process is also ‘without prejudice’, and as such none of the information from the mediation can be used in a future litigation or arbitration proceeding, should a mediation settlement not be reached
**TAKEAWAY** :
Mediation is a confidential and ‘without prejudice’ process.
It Is Time to Unlock the Resolutions to Sports Disputes and Not for Lawyers to Close the Door on Mediation
Whilst it is reasonable to say that anyone involved in a dispute can engage in mediation should it be a viable dispute resolution mechanism, it is still reasonable to presume that many will not have knowledge of mediation, or indeed know what mediation is.
However, hopefully as this series of articles has highlighted, this lack of knowledge is not in my mind a fair enough reason for any legal adviser to clients who may be subject to a dispute, to plead ignorance to mediation or to blindly adjudge that mediation is not a viable means to resolve the dispute for their client.
Put quite simply, lawyers (whether sports lawyers or in other branches of law), are very much the ‘gatekeepers’ when it comes to mediation and the deployment of mediation in resolving disputes. Not so much the ‘gatekeeper’ in the rightful sense of protecting their client from unwanted elements, but also the inversion of a ‘gatekeeper’ that is effectively able to ‘unlock the door‘ and expose their client to mediation, and thus to act in their clients’ best interests and resolve applicable disputes.
Closing Remarks & Purpose
In writing this set of three articles my aim was originally to shine a light on the false misconceptions and pre-conceptions that exist within the legal fraternity (in particular sports lawyers), to encourage more in the field of sports law to consider mediation for themselves and their clients who find themselves involved in disputes.
This is not to say that mediation will be applicable or viable with every such dispute (as I mentioned previously), yet that is not a feasible excuse for mediation to be dismissed as an option to consider from the outset.
And at this point I must again thank Max Duthie for his article (‘Experience of A Sports Lawyer in Mediation‘) in the CAS bulletin, which not only inspired me to write these three pieces, but also reaffirmed my belief in the positive impact mediation can have in sports disputes, as well as offering the reassurance that my observations to the seeming reticence and reluctance towards mediation by some lawyers was not fictional.
Yes, we are all prone to misinformation, misinterpretation, myth, rumour, bias misconceptions and preconceptions. Therefore, in such circumstances any professional will seek to acknowledge, query, advance and develop their awareness and knowledge of new areas and concepts where there may be interest or indeed uncertainty (not just with mediation).
So, to those who want to know more about mediation and how it can be utilised in sports disputes, I welcome the opportunity to discuss this further with you.
And to those in the sports law fraternity who may have in the past blindly dismissed mediation, either based on misinterpretation or even knowingly blocking mediation, hopefully these articles have opened some eyes to the fact that in most cases the benefits far outweigh the negatives for both you and your clients. And again, I welcome the opportunity to discuss how mediation can benefit you and your clients.