Sports mediation
Introduction
This article is written by Espen Auberg who is a certified mediator by the Norwegian Bar Association. Espen Auberg is also an attorney-at-law who specializes in sports law and arbitrator at the Court of Arbitration for Sport in Lausanne, Switzerland.
Traditionally, disputes in sports will be resolved either in ordinary courts or in arbitration, where the dispute finds its solution in an award that is based exclusively on the arbitrators’ or judges’ assessment of the relevant legal framework seen in relation to the actual circumstances of the case. In such a settlement of a sports dispute, one of the parties will appear as a winner, and the other party as a loser. For all parties, including the winning party, a process through the courts will be demanding and costly. In addition to the costs of their own lawyers, the parties will normally spend a lot of time and resources preparing and conducting a case before the courts. Furthermore, a dispute before the courts could be harmful to the parties' future cooperation.
A cheaper, faster and less risky alternative to court proceedings and arbitration is sports mediation. Through sports mediation, it will be possible to achieve good solutions also in cases that involve several parties and have a high level of complexity. Solution-oriented sports mediation allows the parties to take into account continued future relationships and cooperation, financial considerations, what seems fair or morally right, and solutions that satisfy underlying considerations or needs.
Solution-oriented dispute resolution
In contrast to a court and arbitration proceedings, sports mediation will focus on resolving the dispute in a way that is appropriate for all the parties involved. In a court case, the lawyers will typically focus on what has happened and on that basis argue that one's own client was right. A sports mediator, on the other hand, will focus on a solution that the parties will benefit from in the future by seeking to satisfy the parties' needs.
In disputes where the parties are represented by lawyers, the parties may lose some control over the process as the dialogue between the parties mainly goes through the lawyers. In sports mediation, the sports mediator will not represent any of the parties, and the dialogue takes place directly between the mediator and the parties, so that the parties have greater control over the process.
Which disputes are suitable for mediation?
In principle, sports mediation will be a favorable way of resolving disputes in all cases where the parties have a desire to be involved in determining the outcome of the dispute. In particular, sports mediation will be beneficial in disputes where the parties involved will benefit from having a relationship even after the dispute has been resolved. Many sports disputes involve clubs and athletes that have had a relationship for a long time, and that will continue to have meet on a regular basis also after the dispute has been settled. Furthermore, sports disputes where the claim is relatively modest in relation to the costs of a court or arbitration proceeding will be suitable for mediation.
Who is the sports mediator?
The sports mediator is normally a person who has specialized in in sports law and dispute resolution, although it is not formally a requirement that mediators are legally trained. Further, the mediator will normally be trained as mediator. It would normally be beneficial that the mediator has experience within the sports industry where the dispute has arisen. For example, in a dispute between a football club and a football player, a mediator with experience from the football industry who knows how the football industry works would probably have a better fundament to help the parties settle the dispute than a mediator without experience from the football industry. Moreover, a mediator with legal training and experience from the relevant industry will be able to give the parties input with regards to their rights and obligations, that would be useful regardless of the outcome of the sports mediation.
How does sports mediation take place?
The process of sports mediation begins with one or both parties contacting the sports mediator in order to schedule a mediation. The sports mediator will provide the parties with information in advance of the mediation meeting, and guide the parties through the mediation process. The parties will also be informed about the mediator's role in the process and receive a mediation agreement on mediation that must be signed and returned. The agreement states, inter alia, that sports mediation is voluntary, and that the parties may withdraw from mediation at any time. The sports mediator's impartiality will be clarified, and the parties' will be reminded of their duty of confidentiality with regard to what emerges in connection with the sports mediation. Once the mediation agreement is signed, the process can be initiated. A pre meeting will normally be agreed where the parties and the mediator agree on practical matters, including the time and place of the sports mediation.
The sports mediation meeting traditionally takes place physically, either in the mediator's meeting rooms or other suitable premises. After the Covid-19 pandemic, it has become common to carry out mediation digitally, and there are several digital solutions that are well suited for mediation.
The parties can choose whether they want to participate in the sports mediation with a lawyer, and this is normally clarified prior to the sports mediation meeting as it can create an imbalance if only one of the parties are represented by a lawyer. If lawyers participate in mediation, it is in any case important to be aware that the lawyer's role in sports mediation differs from the lawyer's role in a process before the courts. While a lawyer during a court hearing will focus on presenting evidence and arguments that will convince the judge that the lawyer's client should win, the focus in sports mediation will be on the interests of the parties, not on the law. Lawyers who are aware of their role in sports mediation will often be able to help increase the opportunity to create good solutions.
Sports mediation will normally start with a joint session where the mediator and both parties are present. In the joint session, one will go through the actual aspects of the case and try to reveal what interests the parties have in the case. After that, one will usually continue with caucus meetings, which means that the mediator will talk to the parties individually. In such caucus sessions, it is important that the parties notify the mediator of all aspects of the dispute, including interests and views that the party does not wish to notify the other party. The purpose is that the parties in such caucus meetings will often be able to more easily provide information to the mediator about what interests they have in the case, and express how they want the dispute to be resolved. The mediator has a duty of confidentiality and will only notify the other party of information the party allows.
Once the mediator has uncovered the factual sides of the case and revealed the parties' strong and weak sides and interests, the mediator can begin his work of presenting and prioritizing solution proposals together with the parties. In this process, the mediator's qualities as a problem solver are essential. If the parties reach an agreement or partial agreement, the mediator contributes to drafting an agreement.
If the sports mediation is not successful, the mediation could still be useful for the parties. Through mediation, the parties gain insight into the other party's views, which can contribute to the parties reaching an agreement at a later stage.
In August 2022 Espen Auberg made a presentation of sports mediation in a webinar orginised by Accords International. The webinar is available here:
Webinar on sports mediation
