The promise of mediation in sport-related disputes
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ARTICLE
The promise of mediation in sport-related disputes Mordehai Mironi1
Published online: 18 October 2016 T.M.C. Asser Instituut 2016
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 sportrelated 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 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. & Mordehai Mironi [email protected] 1
Faculty of Law, Haifa University, Haifa, Israel
CAS, ECA, WBC, and IIHF and provides recommendations for promoting the idea of mediation in sport. Keywords Mediation Sport disputes CAS Arbitration Mandatory mediation Case settlement
1 Preface ‘‘In the place where ‘I am just’ flowers do not grow’’1 An African football club filed a request for ordinary arbitration with the Court of Arbitration for Sport (CAS) against a European football club, alleging breach of contract. The agreement subjected all disputes between the parties to arbitration in the CAS and according to the CAS Code of Sport-related Arbitration. After the respondent club had filed its answer, the CAS offered the parties to suspend the arbitration proceedings and try to find an amicable solution by mutual consent with the assistance of a CAS mediator. Both parties agreed and their counsels jointly selected a mediator from the CAS list of mediators and he was formally appointed by the CAS Secretary. When it came to scheduling the mediation meeting, it became clear that one of the parties had retracted its consent to go to mediation and insisted on resuming the arbitration proce
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