Football related disputes that utilise mediation can save the parties involved a large amount of time and money, in addition to many other benefits. All benefits are achieved through a confidential process that after resolution allows both parties to focus on other matters, in an ultra competitive football industry where time is at a premium.
Probably the most evident benefit of employing mediation in football disputes is that of the cost saving achieved when compared to other alternatives such as arbitration, FIFAs dispute mechanisms (chambers), CAS and ultimately litigation.
Costs associated with mediation are a fraction of those of a typical football arbitration, costing hundreds rather than thousands (if not tens of thousands) and even more should the dispute then move to FIFA Dispute Chambers, CAS or litigation.
As an accredited member of the Civil Mediation Council (CMC), Sentinel mediators participate in the fixed fee scheme for disputes of less than £50,000-GBP, which ensures that smaller disputes allow for disputants to be assured of fixed low costs in mediation working towards a settlement agreement.
The value of time in football is something that cannot be underestimated. Although, on many an occasion, football participants undervalue the wasted time and unnecessary distraction they are investing when embroiled in a dispute that could be easily resolved.
A dispute that is ongoing, unresolved or even waiting to be heard through the traditional football dispute mechanisms can result disputants losing money, a competitive advantage and depreciating value in assets they already have (or could have).
Quite often it will take months for a dispute to be heard by an arbitrator (or arbitration panel) or even a court in the cases of litigation. And whilst an award/judgement can be made relatively quickly many cases are not settled for further weeks, months or even years, and still then may be subject to appeal with further costs in terms of time and money.
One of the most attractive and important aspects of mediation is that of confidentiality, and to an extent mediation shares this with its close cousin ‘arbitration’. In such a competitive industry as football and one that is constantly subject to media scrutiny and public opinion, confidentiality is key, maintaining a competitive edge and a positive public profile.
Whilst arbitration in football does offer some element of confidentiality to the disputants; it doesn’t readily facilitate the levels of confidentiality that can be afforded to disputants through mediation. Unless agreed by both ‘disputants’, the whole process, discussion and to an extent the settlement/outcome of mediation remains confidential from anyone not part of the mediation.
Various football arbitration mechanisms for football disputes do indeed undertake a confidential process, however the nature of the organisations facilitating these processes often requires (due to public interest and that of stakeholders) the publication of some findings, decisions and the nature of any such dispute. As such, the number of people privy internally within the football body (not just the arbitration process) will risk jeopardising aspects such as confidentiality, unlike mediation whereby the process is restricted to the mediator(s), the disputants and their chosen advisors (e.g. legal).
Whilst arbitration, litigation and similar football governance mechanisms effectively make a judgement or award that is based on money, property or a sanction from regulatory standards (e.g. a fine or suspension), mediation is able to be far more creative in the settlement process.
In a mediation, the role of the mediator is not to pass judgement or make an award, in fact one of the primary duties of the mediator is to remain independent and be a facilitator in the disputants coming to an agreement in what is ‘awarded’ to the disputants to reach an amicable settlement.
Settlement agreed by the parties may go beyond money, property or effectively a sanction; in fact, a successful mediation agreement may be reached with none of these elements – where a handshake, an apology, a sign of understanding or maybe a future agreement can not only settle the dispute but possible repair relationships, if not make them even stronger.
In many cases whereby mediation is employed, a successful settlement may well build on the relationship, whereby the disputants understand each other’s position better and are able to see future opportunities to build a mutually beneficial relationship. This may open up new business opportunities, effectively turning a dispute into joint success and growth.
A mediator is not there to pass judgement on the dispute or the parties involved The mediators duty is to bring the disputants to an area of ‘common ground’ and agreement where they are in essence ‘mildly mutually satisfied’, and anything beyond that is a bonus – but the aim.
In football terms, a successful mediation is like two teams playing the last match in the group stages of a competition and both just need a point (draw) to progress to the next stage. So rather than ‘kick lumps’ out of one another, they can both progress to the next stage and whilst there is no winner, there doesn’t have to be a loser either.