Abstract
The article examines the role that mediation can play and the added value it may bring to the resolution of sport-related disputes. Due to the pivotal role, arbitration has traditionally played in sport, the question posed in this article is not whether mediation should replace arbitration as a mainstream dispute resolution process. It only suggests that mediation should be institutionalized and used in appropriate sport-related disputes, primarily in contractual, commercial, and employment-related disputes as well as in disputes emanating from membership in sport organizations, as an alternative to going directly either to arbitration or to the courts. To substantiate the argument, the article explores and analyzes the limits of arbitration and the special advantage and potential contribution of mediation in sport disputes, in terms of efficiency and flexibility, privacy and parties’ autonomy, and better and more sustainable outcome, enhancing access to justice, ability to deal with non-arbitrable disputes and preserving business and personal relationships. Notwithstanding the advantages, the article highlights two possible shortcomings of mediation in sport, namely, lack of finality and loss of rulemaking opportunities, and discusses the special barriers that stand in the way of developing mediation in sport-related disputes. Finally, the article maps the state of mediation in sport, especially the degree of institutionalization of mediation on the international level, such as the CAS, ECA, WBC, and IIHF and provides recommendations for promoting the idea of mediation in sport.
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Notes
Amichai (1986).
Cheung (2006).
In some Western countries, like the UK and the U.S., the new ideology attaches priority to settlement over adjudication. As a result, the old and idealized conceptualization of the courts as instruments of trial and judgment has been reformulated. Justice is supposed to be achieved through settlement rather than through adjudication. This new development has been termed: ‘The Vanishing Trial'. See Galanter (2004); Roberts ( 2009 ).
Hopt and Steffek (2013).
Barak (2001).
Menkel-Meadow (1995).
Schonewille and Schonewille (2014).
Schonewille and Lack (2014) at 19, 21.
Including: IP, bankruptcy and dissolution, foreclosure and malpractice.
De Palo et al. (2014) at 6 (Hereinafter EU Study).
Reeb ( 2002 ).
Blackshaw (2002b).
As far back as 2002, sport represented 3 % of the world trade, was worth more than 1 % of the total GNP of the EU member states and was responsible for two millions new jobs. Id.
Generally speaking, this tradition has received the backing of legislators and courts. Id. at 17–18.
Also known in its French name—TAS.
Blackshaw (2002c) at 207 (Hereinafter Blackshaw, Mediating Sport).
Id.
For a partial list of cases that were resolved by mediation, see id at 183.
Formerly Sports Resolution Dispute Resolution Panel (SDRP). See id. at 94–95.
ECA Statutes & Organizational Regulations (2013).
Goodrum (2011), http://www.lawinsport.com/articles/regulation-a-governance/item/mediation-in-sports-disputes-lessons-from-the-uk; Volker Hesse conducted a field study which included 16 interviews with sport lawyers, mediators and representatives from international and national federations. They participated in 117 different sport-related cases and reported a settlement rate of 65 %. See Hesse, supra note 18, at 4.
A similar situation exists in the diamond industry.
There is however one important exception—sport disputes in the context of employment relations that in many jurisdictions cannot be brought to arbitration. See further discussion on page 18 infra.
As will be shown below, in Canada these types of cases do go to mediation.
Note however that FIFA applies these enforcement measures only to disputes that were adjudicated by FIFA fora and to arbitration awards issued by CAS in appeals launched against decisions of FIFA fora.
According to one estimate the sport business is worth more than 3 % of world trade and 3.7 % of the combined GNP of the 28 states which are members of the European Union. See Blackshaw ( 2013 ) (Hereinafter Blackshaw, ADR and Sport). As to the dynamic nature of the sport industry, see Blackshaw, Mediating Sport, supra note 20; Blackshaw, ADR and Sport, at 26.
Walde (2004) p. 100. Blackshaw, ADR and Sport, supra note 31, at 24.
Walde, supra note 32, at 100, 102; Goodrum, supra note 25.
Blackshaw, Mediating Sport, supra note 20, at 24.
EU Study, supra note 12, at 124. According to another estimate, on the average, the length of time for mediation is 25 % in comparison to litigation in court. See Hopt and Steffek, supra note 5.
There is however one well known exception—The Macao Sardine Case. See: The RT Hon Lord Justice Kerr (1987).
Brett and Goldberg (1983). In Italy, even a low settlement rate of 28 % is reported to save money for the state and the disputants. See Hopt and Steffek, supra note 5, at 101.
See: Brett and Goldberg, id.
Walde, supra note 32, at 106.
First, there is a very detailed and costly period of learning about the case by the team of lawyers, and then a costly and difficult learning process by the arbitration tribunal as each party's advocates tend, in a ritualized manner, to present information in very biased, selective and often contradictory way. See Walde, supra note 32, at 100, 102. In Walde's words: "To learn about a dispute through litigation is like running a course with many hurdles—nobody wants you to learn what really happened" at 102; See also Cloke (2002) at 168.
Goodrum, supra note 25.
Med-Arb is a hybrid technique of dispute resolution. It combines the benefits of both the mediation and arbitration approach. Parties first attempt to negotiate and reach an agreement with the assistance of a mediator. If the mediation ends in impasse, or if issues remain unresolved, the parties move on to arbitration. The mediator assumes the role of arbitrator and renders a final and binding decision. On Med-Arb, see Bartel ( 1991 ); Landry (1996). On the different arb-med concepts see also McIlwrath and Savage ( 2010) at 185; Dendorfer and Lack ( 2007 ); Mironi (2007); Mironi ( 2012 ).
This hybrid technique refers to situations where arbitration is commenced but during the arbitration a mediation process is initiated and conducted in connection with the arbitration. See Hopt and Steffek supra note 5, at 22.
Stipanowich and Lamare ( 2014 ).
Ibid, at 3. See also Blackshaw, Mediating Sport, supra note 20, at 92, reporting that in a survey of 530 of the largest corporations in the U.S. 88 % said that they use mediation to resolve their disputes and 79 % use arbitration. For an interesting account and interpretation of this development see Bush ( 2002 ). Bush explained that the underlying reason for the expansion of mediation was actually the rising demand for case settlement, not for mediation. Businessmen perceive case settlement (evaluative mediation) as "arbitration light", as a low risk settlement conference in the shadow of law and as a judicial settlement conference conducted by an adjunct judge. The person who conducts the case settlement provides the parties with expert case evaluation as well as substantive settlement recommendations and exerts pressure on the parties to accept her/his proposed solution. Nonetheless, since settlement is secured through mutual consent, they see the process as the best way to restore a sense of self-determination and control over costs and a means to eliminate or vastly reduce the risk of adverse results.
Similar figures are reported in Spain. See: Villamarin Lopez (2013) at 839, 860.
Note however that this may not always be the case; for instance, when a club is a defendant in a breach of contract claim. The club's management may think it can benefit at least financially by postponing payment from the lengthy FIFA proceedings that may take between 1 and 3 years. Therefore, it will prefer arbitration over time-efficient mediation.
American Arbitration Association (2006), available at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004326.
Blackshaw, ADR and Sport, supra note 31, at 1, 57.
For a comparative analysis of regulations regarding mediation confidentiality, see: Hopt and Steffek, supra note 5, in general, pp. 49–53. Confidentiality in Austria: pp. 277 ff.; in Australia: pp. 888 ff.; in Bulgaria: p. 348; in Canada: pp. 938 f.; in Switzerland: pp. 1220 ff; in Germany: pp. 547 f; in United Kingdom: pp. 397 ff.; in Spain: pp. 849 f.; in France: pp. 477 ff.; in Greece: pp. 596 f.; in Italy: pp. 677 f.; in Japan: pp. 1066 f.; in the Netherlands: pp. 721 ff.
Hesse, supra note 18, at 1.
We tend to assume that by awarding money, arbitrators and courts alike are giving people what they want. But as one commentator admonished, "… [W]hat people "want" is powerfully structured by legal institutions and the media". See Felstiner et al. ( 1980–1981 ) p. 648 fn. 14.
Id.
For instance, in a bitter defamation case, the plaintiff maintained in mediation that although he claimed millions, what he really wanted was to make sure that journalists behave more cautiously when the integrity and good name of people are in jeopardy. He agreed that all the money would go towards establishing a special academic program for ethics in journalism.
Walde, supra note 32, at 102.
Not to the conflict. Cloke, supra note 40, at 168–169. Cloke asserted that adjudication is designed to contain and control conflict, not to resolve and transform it.
Shapiro (1981) at 2.
Hesse, supra note 18; Goodrum, supra note 25.
Cloke, supra note 40, at 165.
This information may be provided to the mediator in confidence during private caucus.
Cloke, supra note 40, at 171.
Walde, supra note 32 at 101.
Cloke, supra note 40, at 165.
Walde, supra note 32, at 100.
Blackshaw, ADR and Sport, supra note 31, at 2.
Blackshaw, Mediating Sport, supra note 20, at 181.
Ibid.
Frank Warren's lawyer who claimed that the most important advantage of mediation is its potential to preserve ongoing relationships, was quoted saying: "…[Relationships are important to any business, but particularly so in the sporting context]". Id. at 86 and 205.
Id. at 24.
Only a small number of arbitration awards were challenged in court (118 in 25 years) and only a fraction (nine) were successful. See Despina Mavromati, Counsel, Head of Research and Mediation at CAS, Prospects for CAS Mediation, Address at the 1st CAS Conference on Mediation (May 16, 2014).
Hopt and Steffek, supra note 5, at 45; Caponi (2015) at 139.
Blackshaw, Mediating Sport, supra note 20, at 18; Hopt and Steffek, supra note 5.
Hesse, supra note 18, at 2; Stronach (2013), available at http://www.crdsc-sdrcc.ca/eng/documents/IntheNeutralZoneFeb2013EN.pdf.
Hopt and Steffek, supra note 5, at 45.
Id. at 106.
An extreme example is FIFA which, as a matter of policy, expressly prohibits recourse to ordinary courts. Blackshaw, ADR and Sport, supra note 32, at 38.
Lack (2011) at 364.
In Germany under Section 101 of the Labor Courts Act, only collective labor disputes may be brought to arbitration. It is noteworthy that recently a German court decided that an arbitration clause in a contract between an athlete and her national sport organization declaring a decision of the CAS binding and final and disallowing access to the courts for review was invalid since it is not possible to waive the right of access to the judicial system by such a clause. See: LG München I (2014).
See Lennox Lewis v. The World Boxing Council and Frank Bruno (1995). In this case Lewis filed an action in England challenging the sweeping mandatory mediation clause for all claims against WBC. The court rejected the claim and sent him to mediate in the U.S. The court also dismissed the argument that WBC, which was the defendant, was administering the mediation.
Hopt and Steffek, supra note 5, at 6.
The studies were discussed in: Colvin (2014) (hereinafter Colvin, Dublin).
Such as individual disputes between clubs and their players or coach, and disputes between federation and referees. Power imbalance exists, among others, in disputes between national and international federations and athletes or clubs as well as many other sport-related disputes.
According to the study, employment arbitration in the U.S. is twice as fast as litigation in courts. See Colvin ( 2011 ) (hereinafter Colvin, Employment Arbitration). This is due to its relatively informal and expeditious procedures, availability of arbitrators and finality of decision-making since there is no recourse to time-consuming appeals. Id. at 3–4.
Colvin, Dublin, supra note 85, at 4.
According to Colvin, arbitrators in mandatory arbitration programs typically award approximately 10–20 % of the amount awarded by courts. Colvin, Employment Arbitration, supra note 87, at 11; Colvin, Dublin, supra note 85, at 17.
Colvin, Dublin, supra note 85, at 13–14. The relevance of these finding to arbitration in sport is clear.
Estreicher (2001); Colvin, Employment Arbitration, supra note 87, at 11; Colvin, Dublin, supra note 85, at, 7, 12. Similar shortcomings were recently attributed by the FIFPro to the CAS. FIFPro asked CAS to refresh the arbitration roster in order to make it more independent and representative of all stakeholders and to make the selection process of arbitrators, chambers and chairpersons more transparent. See: FIFPro (2011a), http://www.fifpro.org/en/news/fifpro-demands-action-against-controversial-cas; FIFPro (2011b), http://www.fifpro.org/en/news/fifpro-resolution-on-cas-policy; FIFPro (2011c), http://www.fifpro.org/en/news/often-a-decision-by-the-cas-is-a-matter-of-chance; FIFPro (2011d), http://www.fifpro.org/en/news/cas-is-a-part-of-the-sion-case-problem; FIFPro (2011e), http://www.fifpro.org/en/news/swiss-players-union-cas-requires-faster-procedures. Recently it was reported that CAS had invited FIFPro and the clubs to nominate new arbitrators in order to address some of these concerns. See FIFPro (2015), http://www.fifpro.org/en/news/does-football-need-cas.
Studies regarding grievance mediation in the U.S. show that mediation produces faster resolution with lower costs. See Feuille (1999). According to one study from 1983, which has become a classic, 89 % of the grievances were resolved in mediation. The average time to resolve grievance through mediation was 15 days and in arbitration, 109 days, and the costs of arbitration were four times higher. Brett and Goldberg, supra note 37.
In the employment sphere, speed is crucial for employees given the importance of maintaining or restoring ongoing employment relationships. A lapse of time has a negative effect since the relationship will probably deteriorate and changes will take place in the organization, thus reducing the chance of continued or restoring employment. It appears as if speed is even more important in the area of sports given the short career of athletes.
Cobb, supra note 10; Kelly, supra note 10.
Colvin, Dublin, supra note 85, at 7.
Such as reforms in the company's policies and procedures, finding an alternative job. In contrast to arbitration and courts adjudication that concentrate on monetary remedies. Id. at 6.
Cloke, supra note 40, at 170.
In contrast to court litigation, arbitration and case settlement (evaluative mediation or conciliation), in mediation the main actors are the parties themselves and the lawyers play a secondary role. See Mironi, Mediation v. Case settlement, supra note 10, at 179.
Blackshaw, Mediating Sport, supra note 20, at 24.
Id. at 23.
Id. at 184.
Hesse, supra note 18, at 4.
Fiss ( 1984 ).
This point was further developed in Bush. See Bush, supra note 45.
Blackshaw, ADR and Sport, supra note 31, at 31.
Id. at 33.
Foster (2003); Blackshaw, ADR and Sport, supra note 31, at 8, 15.
EU Study, supra note 12, at 6.
Schonewille and Lack, supra note 9, at 20.
Note that in some areas the rates are higher. For instance, Center for Effective Dispute Resolution (CEDR) reports an average settlement rate of 85 % in business-related mediation. Blackshaw, Mediating Sport, supra note 20, at 91.
Schonewille and Lack, supra note 9, at 20. A similar problem was reported in U.S. labor relations. Grievance mediation has been extremely successful with 89 % settlement rate and substantial saving in time and costs. Brett and Goldberg, supra note 37. Nonetheless, only 3 % of collective agreements contained a grievance mediation provision. See Feuille, supra note 92, at 197.
For instance, many lawyers still fear that the mediation will become a fishing expedition, namely, that their opponent will use the mediation to receive important information which, if mediation fails and the case goes to trial, he or she would have to secure, if at all, through cumbersome legal proceedings. As a result, unsuccessful mediation may end up by losing important tactical advantages. The truth is that each party has full discretion as to the information disclosed and there is always an opportunity to reveal sensitive information only to the mediator in a private caucus. See also Blackshaw, Mediating Sport, supra note 20, at 23.
Hopt and Steffek supra note 5, at 96.
Goodrum, supra note 25.
Aschenbrenner (2014) at 46.
According to the author's observation, there is no substantive difference between lawyers with and without mediation training when it comes to advising clients to use mediation.
See Loorbach ( 2002 ).
One commentator argued that the problem is more severe in Europe. See Borris ( 2007 ).
See Sternlight ( 1999 ) at 325.
It has been said that for many lawyers, ADR stands for Alarming Decline in Revenue.
Such as renewal or restructuring of business relationship.
Riskin (1982) at 43, 47. In order to provide maximum space for their clients and their narratives, lawyers in mediation must act contrary to what they are used to in trial advocacy. They must give up the lead actor role and shrink their presence in the room.
Procter ( 2010 ).
Article R42 of the CAS Code of Sport-related Arbitration, latest version effective as of 1 March, 2013 (2013) and available at http://www.tas-cas.org/en/arbitration/code-procedural-rules.html.
See also Blackshaw, ADR and Sport, supra note 31, at 30. In this context, conciliation is different from mediation. It is akin to case settlement. See Mironi, Mediation v. Case Settlement, supra note 10.
Not all registered arbitration procedures end up in arbitration hearings and decisions. In many instances, the case is deemed withdrawn either because of failure to pay the advance of costs or to comply with the pre-hearing procedures. In others, the parties no longer wish to proceed with the arbitration.
So far, relatively few CAS arbitration procedures (approximately 50) have ended up with a consent award. Email from Despina Mavromati, to Mordehai Mironi (July 5, 2014, 10:23 UTC).
Peter Feuille attributed the low use of grievance mediation in the U.S. to the ongoing success of labor arbitration. Feuille, supra note 92, at 197.
Blackshaw, ADR and Sport, supra note 31, at 39.
See Blackshaw, Mediating Sport, supra note 20, at 207.
The Amateur Swimmers Association (ASA) urged parties to use mediation for disputes regarding alleged breach of the association's ‘Code of Ethic'. See Blackshaw, Mediating Sport, supra note 20, at 183.
Id. at 207.
Hon Graeme Mew, Judge (Superior Court of Justice, Ontario), CAS arbitrator and mediator, Address at the 1st CAS Conference on Mediation (May 16, 2014).
Howard Stupp, Director legal affairs IOC, Address at the 1st CAS Conference on Mediation (May 16, 2014).
For a partial list of cases that were resolved by mediation, see Blackshaw, Mediating Sport, supra note 20, at 183.
Formerly Sports Resolution Dispute Resolution Panel (SDRP). Id. at 94–95.
Most of the cases are football-related. Others involve tennis, judo, basketball and gymnastics.
Hesse cites a study conducted by the Swiss Association of Mediation which reported a 70 % settlement rate. He also indicates that, according to the literature, the rate is 75–90 % depending on the type of dispute. See Hesse, supra note 18, at 4. Ian argues that in appropriate cases the rate is even higher—an 85 % settlement rate in the literature. Blackshaw, ADR and Sport, supra note 31, at 26.
Including the mediator's fees and travel expenses.
As explained by ECA Legal Service Manager, Wouter Lambrecht, the ECA's mandatory mediation is de-facto a light model (soft law). There is a moral obligation and clubs are not sanctioned for refusal to use mediation.
Three of the four belong to the period prior to February 2013.
Blackshaw, Mediation Sport, supra note 20, at 84–85.
Gunn (2013), available at http://www.crdsc-sdrcc.ca/eng/documents/ReflectionsontheRF-RGUNNENG.pdf.
Note that the SDRCC Resolution Facilitation process is also used as a preventive mediation measure and in an adapted version, also in doping. Id. at 2.
One indication is that during the first 25 years only 118 applications were made to the Swiss Supreme Court against the CAS awards and only nine were upheld while four more were still pending. Mavromati, Address at the CAS Conference, supra note 73.
Blackshaw, Mediating Sport, supra note 20, at 181.
In 2010, UK Dispute Resolution reported that the number of disputes going to mediation doubled when compared to the previous 18 months and mediation had been used in 25 % of the cases. See Procter ( 2012 ).
Interview with Despina Mavromati, Counsel, Head of Research and Mediation at the CAS (2014).
Mediation suffers from a lack of public exposure, among others, due to the norm of strict confidentiality and the media's lack of interest in drama-less peaceful resolution of conflicts.
Especially at the early stage of conflict. See Procter, supra note 123, at 5.
A prominent UK sport lawyer argued that sport lawyers may gain great benefits from taking their clients to mediation. First, they may look good in the eyes of their client as the ones who save them money and time. Second, in the majority of cases there will be an agreement that the client really likes and wants. Third, this is the only process which assures strict confidentiality. Fourth, they have quality and intimate time with their client. All mediation in transnational disputes and often in domestic disputes is conducted in marathon sessions. It is a different experience emotionally to go on the mediation journey guided by a mediator together with one's client, his/her opponent and her/his lawyer. Fifth, a good mediator will know how to involve and give place to lawyers in the process. Sixth, if the mediation fails, nothing is lost. It may well be that the parties have reached agreement on some of the issues or on procedural aspects and as happens many times, agreement will follow. In any case, the parties and their lawyers come out with much better knowledge about the other side and deep understanding about the case. Duthie ( 2014 ), available at http://www.tas-cas.org/fileadmin/user_upload/Bulletin_1_2014.pdf.
Abramson ( 2011 ).
Through co-mediation, supervision and continuing education in mediation, ADR, sport law and sport management. Omar Ongaro attributed the failure of mediation in FIFA to two main factors: the low quality of mediators and parties' fears of problems associated with the execution of mediation agreements. Omar Ongaro, Head of Players’ Status and Governance, FIFA’s Legal Affairs Division, Address at the 1st CAS Conference on Mediation (May 16, 2014).
The best example and the most important volume-wise was FIFA in 2002.
Blackshaw, ADR and Sport, supra note 31, at 3.
Even the leading international commercial arbitration institutions like ICC and LCIA have changed their long held approach and conduct arbitration proceedings all over the world. The CAS itself which has a seat in Lausanne keeps two permanent branches or "satellite offices" (in Sydney Australia and New York) that can host arbitration hearings as well as hearing centers in Shanghai and Singapore and allows panels to conduct arbitration hearings anywhere.
As for conservative measures see Blackshaw, ADR and Sport, supra note 31 at 12–13. Providing a platform for ascertaining particular interim measures without filing a request for full blown arbitration is an important step to enhance mediation. It can easily be done in a one stop place like the CAS. See: Banfi (2015), available at http://www.clydeco.com/insight/updates/view/mediation-undermined-in-spain.
Former the CAS rules enabled disputing parties to avail themselves of an advisory opinion. The CAS Advisory Opinion was a unique process and procedure. It was a non-binding opinion written in an arbitration format, answering specific questions, primarily legal. The answers were supposed to set out certain general principles and act as guidelines as to possible ways of viewing and characterizing particular situations. Although in practice this procedure was seldom used (an average of once per year), in appropriate case, it can be very helpful in mediation. It is a fast and inexpensive means of clarifying legal issues that may otherwise block the progress of mediation. The fact that these opinions are only advisory, i.e., not legally binding, make them very valuable and suitable for mediation.
There is an ongoing debate in international arbitration circles as to how to give a mediated settlement the power of an arbitration award. See: Sussman (2009); Weiss and Hodgkinson ( 2014 ). At present, a party to a CAS mediation agreement may use expedited procedure in order to get a declaratory award.
In order to encourage parties to use mediation in pending cases and even in cases that are on their way to court, mediation legislation in many countries help to execute the mediation agreement by giving it the power of enforceable court judgment. See: Hopt and Steffek, supra note 5, at 45–47. It is noteworthy that Israel adopted an extreme model of direct enforcement. If a settlement is reached in a pending case the mediated agreement is filed and automatically possesses the power of a court judgement. In addition, in order to encourage potential litigants to use mediation even before initiating court proceedings, Israeli law authorizes judges to issue consent decrees bestowing the power of the court's judgment on agreements reached through pre-action mediation, i.e., in situations where a lawsuit was not even filed. See Courts Law (1984).
This hybrid procedure is probably possible under the CAS rules but is prohibited under ECA rules. The last paragraph of Article 17 to the CAS Mediation Rules provides that "in the event of failure to resolve a dispute by mediation, unless the parties agree in writing otherwise, the mediator shall not accept an appointment as an arbitrator in any arbitral proceedings concerning the parties involved in the same dispute". The demand for a written consent is not a barrier since it is stipulated in the mediation agreement that the parties agreed to appoint the mediator as arbitrator. More important, when parties move from mediation to Med-Arb they ought to sign a separate agreement.
It can also work in the reverse order, i.e., parties may attempt to settle one or more issues through mediation during the arbitration proceedings.
Such as dragging out the dispute in order to gain time and enhance stress or depleting the other side's resources and combative spirit. See Lack, supra note 80, at 344.
Such as fishing for facts and legal arguments and getting to know the other side and her counsel. Id.
EU Study, supra note 12.
Id. at 7.
Id.
New York recently introduced an innovative mandatory mediation program under which every fifth case that comes to the New York County Commercial Division has to go to mediation. Parties may opt-out by showing just cause. The program was introduced in July 2014 as a pilot for eighteen months. See Brennan (2014) available at http://www.jamsadr.com/files/Uploads/Documents/Articles/Brennan-Lorraine-Mandatory-Mediation-NY-LAW-2014-07-23.pdf.
Romania adopted an opt-in version, according to which if at the end of the information session both parties are interested in pursuing mediation they start a new process. See EU Study, supra note 12, at 8.
Dunnett v. Railtrack (2002); Halsey v. Milton Keynes General NHS Trust (2004). As an exception to the general rule, the unsuccessful party has the burden to prove that, with regard to all circumstances of the particular case, the successful party acted unreasonably. The court provided a non-exhaustive list of factors to be taken into account, including the nature of the dispute, the merits of the case, the extent to which other methods of settlement had been attempted, whether the cost of ADR would be disproportionately high, whether a delay associated with ADR processes would have been prejudicial, and whether mediation had a reasonable prospect of success. For a recent holding, see: Garritt-Critchley v. Ronnan (2014); Laporte v. Commissioner of Police of the Metropolis (2015).
As a matter of principle, there is nothing exceptional in compelling disputants to use mediation. In our culture we have traditionally compelled defendants to submit to court adjudication whenever a claim against them was filed and the same is true for most sport disputes, only that they are subject to arbitration. In light of the important aim, on the one hand, and the tyranny of the status quo as well as the forces, vested interests and obstacles, on the other hand, I do not see a problem with the slight concession regarding the concept of voluntarism.
Such a session can be conducted through a video or telephone conference and should be free of charge.
It appears that there is no need to change the CAS rules in order to adopt such measure. Under Article R64.5 the arbitration panel has a wide discretion in awarding costs to the successful party including legal fees and costs of witnesses and interpreters. The rule stipulates that in its decision, the panel may take into account the complexity of the proceedings and the conduct of the parties. Nonetheless, in order for the parties to be aware of this consequence beforehand, it may be wise to amend Article R64.5 of the CAS Code by inserting a new provision which explicitly mentions this possibility.
See Hopt and Steffek, supra note 5, at 23–24.
It is noteworthy that in 2001 FIFA offered a mediation service. The experiment was short-lived and abolished after one year due to what FIFA considered to be low demand (1 % of cases) and a low settlement rate that would justify investing resources in building an institutional mediation service. Ongaro's Address at the CAS Conference, supra note 154.
Employment contract is a prototype of relational contract. See Macneil (2001).
Fuller (1978).
When mediation was first introduced into the CAS, the former Senior Counsel emphasized that mediation was to encourage the "spirit of understanding" which is made to measure for sport. Blackshaw, ADR and Sport, supra note 31, at 25.
See for example the case of Richie Woodhall and Frank Warren. This entrenched contractual dispute which received extensive media coverage, a war of words and hostility, was resolved by mediation in 2 days, by re-negotiating the contract which promised to preserve their successful relationships. See Blackshaw, Mediating Sport, supra note 20, at 85–86.
Goodrum, supra note 25.
In Israel, for example, all types of non-criminal appeals, including civil and administrative law, are referred to mediation, including appeals before the Supreme Court.
Blackshaw, Mediating Sport, supra note 20, at 93.
Hon Graeme Mew, supra note 132.
Brown ( 2014 ); Duthie, supra note 152, at 36–37.
Currently all disciplinary procedures are based on "negative discipline", i.e., punishment, and uniform treatment. Mediation can be much more creative, leading to tailor-made solutions which fit the individual case. For instance, if a player or a coach is blamed for inappropriate conduct, such as making a racist statement, he can be assigned to write a new anti-racism code and present it or devote time to educate different groups about the negative societal consequences of racism. This is why mediation has been referred to as the New Equity. See Main (2005).
Such as loss of lucrative sponsorship and endorsement contracts Blackshaw, ADR and Sport, supra note 31, at 25. Ian Blackshaw, Professor at the Anglia Ruskin University, international sports lawyer, honorary fellow at Asser Sports law center, Overview of the Different Mediation Clauses and Examples Tailored to Sport Federations, Address at the 1st CAS Conference on Mediation (May 16, 2014).
The International Chamber of Commerce’s International Court of Arbitration's volume of cases has grown from 32 new arbitrations in 1956 to 759 in 2012. This is a roughly 24-fold increase over the past 48 years. See Born (2014) at 93. See also Blackshaw, Mediating Sport, supra note 20, at 93.
References
Abramson HI (2011) Mediation representation, 2nd edn. Oxford University Press, Oxford
Alexander NM (2009) International and comparative mediation—legal perspectives. Kluwer Law International, Alphen on the Rhine, The Netherland
American Arbitration Association (2006) Dispute-wise business management—improving economic and non-economic outcomes in managing business conflicts 7. https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004326
Amichai Y (1986) The place where we are right. In: The selected poetry of Yehuda Amichai (Chana Bloch & Stephen Mitchell, trans & eds)
Arnaut JL (2006) Independent European sport review: report by José Luis Arnaut (a report)
Article R42 of the CAS code of sport-related arbitration, latest version effective as of 1 March 2013. http://www.tas-cas.org/en/arbitration/code-procedural-rules.html
Aschenbrenner JB (2014) Wirtschaftsberatende Anwälte als Verhinderer alternativer Streitbeilegung? ZKM 17(2):45–50
Banfi R (2015) Mediation undermined in Spain. www.clydeco.com/insight/updates/view/mediation-undermined-in-spain. 4 Mar 2015
Barak A (2001) On mediation. With Consent 1:14–15 (10)
Barnes BE (2013) An overview of restorative justice programs. Alaska J Disp Resol 1:101–120
Bartel BC (1991) Med-Arb as a distinct method of dispute resolution: history, analysis, and potential. Willamate Law Rev 661
Blackshaw I (2002a) The ‘specificity of sport’ and the EU white paper on sports: some comments. Int Sports Law J 3–4:87
Blackshaw I (2002b) Sport and mediation. Int Sports Law J 2002/2:17
Blackshaw IS (2002c) Mediating sports disputes. T.M.C Asser Press, Hague
Blackshaw I (2013) ADR and sport: settling disputes through the court of arbitration for sport, the FIFA dispute resolution chamber, and the WIPO arbitration and mediation. Marq Sports Law Rev 1:1
Born GB (2014) International commercial arbitration, 2nd edn. Kluwer Law International, Alphen aan Den Rijn
Borris C (2007) Final offer arbitration from a civil law perspective: how to play baseball in Soccer country. J Int Arb 24:307
Brennan LM (2014) Start spreading the news: mandatory mediation comes to New York. http://www.jamsadr.com/files/Uploads/Documents/Articles/Brennan-Lorraine-Mandatory-Mediation-NY-LAW-2014-07-23.pdf
Brett JM, Goldberg SB (1983) Grievance mediation in the coal industry: a field experiment. Ind Lab Rel Rev 37:49
Brown J (2014) Mediation of disputes in equestrian sports: an English perspective. Glob Sport Law Tax Rep 35
Bush RAB (2002) Substituting mediation for arbitration: the growing market for evaluative mediation, and what it means for the ADR field. Pepp Dis Resol J 3:111
BVerfG (2007) NJW-RR 2007. 14 Feb 2007
Caponi R (2015) “Just settlement” or “just about settlement”? Mediated agreements: a comparative overview of basics. Rabel J Comp Int Priv Law 79:117–141
Cheung S (2006) Mandatory use of ADR in construction—a fundamental change from voluntary participation. J Prof Issues Eng Educ Pract 132(3):224
CJEU (2014) Joint cases C-317/08 to C-320/08, Alassani./. Telecom Italia SpA, No. 46, 18 Oct 2014
Cloke K (2002) Mediating dangerously. Wiley, New York
Clyde & Anor v van Winkelhof (2011) EWHC 668 (QB)
Cobb S (1993) Empowerment and mediation: a narrative perspective. Neg J 9:245
Colvin AJS (2011) An empirical study of employment arbitration: case outcomes and processes. J Empir Legal Stud 8(1):1–23
Colvin A (2104) ADR and equality in justice in employment. Paper presented at ISLSSL XI European Regional Congress Dublin, 19 Sept 2014
Courts Law (1984) Abridged version, S.H. 198, § 79 (g) & (h)
De Palo G, D’Urso L, Trevor M, Branon B, Canessa R, Cawyer B, Reagan FL (2014) ‘Rebooting’ the mediation directive: assessing the limited impact of its implication and proposing measures to increase the number of mediations in the EU, European Parliament Brussels
Dendorfer R, Lack J (2007) The interaction between arbitration and mediation: vision V reality. Disp Resol Int 1:73
Diedrich F (ed) (2014) The status quo of mediation in Europe and overseas: options for countries in transition. Verlag Dr. Kovac, Hamburg
Dore LK (2006) Public courts versus private justice: it’s time to let some sun shine in on alternative dispute resolution. Chicago-Kent Law Rev 81:463
Dunnett v. Railtrack (2002) 2 All ER 850, CA
Duthie M (2014) Experience of sport lawyer in mediation. CAS Bull 31:35–39. http://www.tas-cas.org/fileadmin/user_upload/Bulletin_1_2014.pdf
ECA statutes & organizational regulations, article 8(i), 2013 edn
Estreicher S (2001) Saturns for rickshaws: the stakes in the debate over pre-dispute employment arbitration agreements. Ohio State J Disp Resol 16:559
Felstiner LF et al (1980–1981) The emergence and transformation of disputes: naming, blaming, claiming… Law Soc Rev 15(3–4):631 (648 ff14)
Feuille P (1999) Grievance mediation. In: Eaton AE, Keefe JH (eds) Employment dispute resolution and worker rights in the changing workplace. Cornell University Press, Ithaca
FIFPro (2011a) FIFPro demands action against controversial CAS. http://www.fifpro.org/en/news/fifpro-demands-action-against-controversial-cas. 4 Feb 2011
FIFPro (2011b) FiFPro resolution on CAS-policy. http://www.fifpro.org/en/news/fifpro-resolution-on-cas-policy. 4 Feb 2011
FIFPro (2011c) Often, a decision by the CAS is a matter of chance. http://www.fifpro.org/en/news/often-a-decision-by-the-cas-is-a-matter-of-chance. 5 Feb 2011
FIFPro (2011d) CAS is a part of the sion case problem. http://www.fifpro.org/en/news/cas-is-a-part-of-the-sion-case-problem. 14 Sept 2011
FIFPro (2011e) Swiss players union: CAS requires faster procedures. http://www.fifpro.org/en/news/swiss-players-union-cas-requires-faster-procedures. 14 Sept 2011
FIFPro (2015) Does football need CAS? http://www.fifpro.org/en/news/does-football-need-cas. 31 Mar 2015
Fiss O (1984) Against settlement. Yale Law J 93:1073
Foster K (2003) Is there a global sport law? Ent Sport Law J 2:1
Fuller LL (1978) The forms and limits of adjudication. Harv Law Rev 92:353
Galanter M (2004) The vanishing trial: an examination of trials and related matters in federal and state courts. J Empir Legal Stud 1:459
Garritt-Critchley v. Ronnan (2014) EWHC 1774 (Ch)
Goodrum N (2011) Mediation in sports disputes: lessons from the UK. http://www.lawinsport.com/articles/regulation-a-governance/item/mediation-in-sports-disputes-lessons-from-the-uk. 4 July 2011
Gunn R (2013) Reflections on the resolution facilitation process. In: The neutral zone (February) 1. http://www.crdsc-sdrcc.ca/eng/documents/ReflectionsontheRF-RGUNNENG.pdf
Halsey v. Milton Keynes General NHS Trust (2004) 1 W.L.R. 3026, CA
Hedeen T (2005) Coercion and self-determination in court-connected mediation: all mediations are voluntary, but some are more voluntary than others, the just. Sys J 6:273–291
Hesse V (2014) Is mediation suitable to resolve sport related disputes? http://www.lawinsport.com/articles/item/is-mediation-a-suitable-to-resolve-sports-related-disputes#references. 5 Nov 2014
Hopt KJ, Steffek F (eds) (2013) Mediation: principles and regulation in comparative perspective. Oxford University Press, Oxford
Interview with Despina Mavromati, Counsel, Head of Research and Mediation at the CAS. In: Football legal, vol 1, p 51 (2014)
Kerr LJ (1987) Arbitration v litigation the Macao Sardine case. Int Bus Law 15:152
Lack J (2011) Appropriate dispute resolution (ADR): the spectrum of hybrid techniques available to the parties. In: Ingen-Housz A (ed) ADR in Business. Practice and issues across countries and cultures, vol 2, pp 339–378
Lack J, Bogacz Francois (2012) The neurophysiology of ADR and process design: a new approach to conflict prevention and resolution. Cardozo J Conflict Resolut 14:33–50
Landry S (1996) Med-Arb: mediation with a bite and an effective ADR model. Def Couns J 63:263
Laporte v. Commissioner of Police of the Metropolis (2015) EWHC 371 (QB)
Lennox Lewis v. (1995) The world boxing council and Frank Bruno (unreported transcript, 3 Nov 1995)
Levi DL (1997) The role of apology in mediation. N Y Univ Law Rev 72:1165
LG München I (2014) 26 February 2014, 37 O 28331/12 (schiedsVZ 2014, 100)
Loorbach J (2002) Sport and mediation in the Netherlands. Int Sports Law J 2:25–26
Main TO (2005) ADR: the new equity. Univ Cincinnati Law Rev 74:329
Macneil IR (2001) The relational theory of contract. Sweet and Maxwell, London
Mayer B (2004) Beyond neutrality. Wiley, New York
McIlwrath M, Savage J (2010) International arbitration and mediation. Kluwer Law International, Alphen aan Den Rijn
Moen JK et al (2001) Identifying opportunities for empowerment and recognition in mediation. In: Folger JP, Baruch Bush RA (eds) Designing Mediation: approaches to training and practice within a transformative framework. Hempstead, NY, pp 112–132
Menkel-Meadow C (1995) The many ways of mediation: the transformation of traditions, ideologies, paradigms and practices. Neg J 11:217
Menkel-Meadow C, Love LP, Schneider AK (2006) Mediation: practice, policy and ethics. Aspen, New York
Mironi M (2007) From mediation to settlement and from settlement to final offer arbitration: an analysis of transnational business dispute mediation. Int J Arb Mediat Disp Manag 73:52
Mironi M (2009) The arbitration of employment disputes—revisited. Hebrew Univ Law J 39:499
Mironi M (2012) From mediation to settlement and from settlement to final offer arbitration: a case study of MEDALOA in a transnational business dispute mediation. N Y Disp Resol Lawyer 5:77
Mironi M (2014) Mediation v. case settlement: the unsettling relations between mediation and courts—a case study. Harv Neg Law Rev 19:173
Osi C (2008) Understanding indigenous dispute resolution processes and western alternative dispute. Cardozo J Conflict Resolut 10:163
Procter E (2010) Dispute resolution in sport: the role of sport resolution (United Kingdom). Int Sport Law Rev 10(1):3–8
Procter E (2012) Fair play at the games. Resolver 6
Reeb M (2002) The role and functions of the court of arbitration for sport (CAS). Int Sports Law J 2002/2:21
Reuben RC (2006) Confidentiality in arbitration: beyond the myth. Univ Kansas Law Rev 45:1255
Riskin LL (1982) Mediation and lawyers. Ohio State Law J 43(29):29–60
Robbennolt JK (2003) Apologies and legal settlement: an empirical examination. Mich Law Rev 102:460
Roberts S (2009) ‘Listing concentrates the mind’: the English Civil Court as an arena for structured negotiation. Oxf J Legal Stud 29:457
Sander FEA (2000) The future of ADR: the Earl F. Nelson memorial lecture. J Disp Resol 3
Schonewille M, Lack J (2014) Mediation in the European Union and Abroad: 60 states devided by a common word? In: Schonewille M, Schonewille F (eds) The variegated landscape of mediation-a comparative study of mediation regulation and practices in Europe and the world. Eleven International publishing, The Hague, p 19–44
Schonewille M, Schonewille F (eds) (2014) The variegated landscape of mediation—a comparative study of mediation regulation and practices in Europe and the world
Shapiro M (1981) Courts: a comparative and political analysis. University of Chicago Press, Chicago
Steffek F et al (eds) (2014) Regulating dispute resolution ADR and access to justice at the crossroads. Hart, Oxford
Sternlight JR (1999) Lawyers’ representation of clients in mediation: using economics and psychology to structure advocacy in non-adversarial settings. Ohio J Disp Resol 14(2):269–366
Stipanowich TJ, Lamare JR (2014) Living with “ADR”: evolving perceptions and use of mediation, arbitration and conflict management in fortune 1,000 corporations. Harv Negot Law Rev 19:1
Stronach J (2013) Online internal appeal panel orientation. In: The neutral zone (February) 3–4. http://www.crdsc-sdrcc.ca/eng/documents/IntheNeutralZoneFeb2013EN.pdf
Sussman E (2009) The New York convention through a mediation prism. Disp Resol Mag 15
Thoma I (2008) Confidentiality in English arbitration law: myths and realities about its legal nature. J Int Arb 25:299
Tulis BA (2010) Final offer “baseball” arbitration: context, mechanics & applications. Seton Hall J Sports Ent Law 20:85–130
van Wormer KS, Walker L (2013) Restorative justice today—practical applications. Sage Publications, Thousand Oaks
Villamarin Lopez ML (2013) Mediation in Spain-deling with its first national regulation. In: Hopt KJ, Steffele F (eds) Mediation: principles and regulation in comparative perspective. Oxford University Press, Oxford
Walde TW (2004) Proactive mediation of international business & investment disputes involving long-term contracts: from zero-sum litigation to efficient dispute management. Bus Law Int 5:99–100
Wassner BM (2003–2004) Major league baseball’s answer to salary disputes and the strike: final offer arbitration: a negotiation tool facilitating adversary agreement. Vanderbilt J Ent 6(5):11
Weatherill SR (2010) Fairness, openness and the specific nature of sport: does the Lisbon treaty change EU sport law? Int Sports Law J 3–4:11
Weiss D, Hodgkinson B (2014) Adaptive arbitration: an alternative approach to enforcing cross-border mediation settlement agreements. Am Rev Int Arb 2
Welsh NE (2001) The thinning vision of self-determination in court-connected mediation: the inevitable price of institutionalism? Harv Neg Law Rev 1 6(3):5–21
Wissler RL (2002) Court-connected mediation in general civil cases: what we know from empirical research. Ohio State J Disp Resol 17:641
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The author wish to thank Ms. Despina Mavromati—CAS Head of Research and Mediation, and Mr. Efraim Barak—CAS arbitrator, for their valuable comments and Mr. Oren Avraham for his technical assistance.
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Mironi, M. The promise of mediation in sport-related disputes. Int Sports Law J 16, 131–154 (2017). https://doi.org/10.1007/s40318-016-0101-4
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DOI: https://doi.org/10.1007/s40318-016-0101-4