Mediation is also known as Alternative Dispute Resolution (ADR) but may be otherwise described as a managed conversation.
Mediation is used as a mandated step in resolving disputes whether between big companies tussling over money in court or in arguments between members of sporting clubs.
And that is one of the benefits of mediation: it is always confidential to the parties and any discussion held at mediation cannot be used as evidence in any court proceedings or in any other forum. Sometimes, mediation would be the preferred course of action at a club level if no formal or informal procedure has managed to settle the matter.
Grievance and discipline provisions in sport constitutions
Most sports bodies, whether at club, state or national level, have clauses in their constitutions dealing with grievance and discipline matters.
A grievance is a complaint by a person or organisation against another person or organisation, or perhaps more than one. A discipline matter is where a person or organisation is “charged” with breaching the rules, including the constitution and policies, which can result in a penalty being imposed.
Penalties may range from a warning to a fine with the ultimate sanction being expulsion after the matter is dealt with via a tribunal or similar hearing conducted in accordance with the rules of natural justice.
It is for grievance matters that mediation is generally applied as a mandatory step in dealing with the complaint or grievance.
In the Play by the Rules material on complaint handling the role of the Member Protection Information Officer (MPIO) is explained. There is also dedicated training for MPIOs on https://www.playbytherules.net.au/online-courses/mpio-online-course
. The purpose of the MPIO is to be the first port of call for a complaint and assist the complainant with the provision of information about how the complaint might be dealt with. The MPIO does not mediate or investigate or otherwise seek to resolve the complaint or grievance him or herself.
If through the involvement of the MPIO, a satisfactory outcome can’t be reached then the next step is for the matter to be mediated. Quite often arguments and disputes flare up and are left to a slow burn whilst people within the club or sport decide how it might be dealt with. In that time tempers rise as does the temperature. People hear things, take sides, gossip, spread misleading statements and quite often make things worse to the detriment of all involved and to the club or sport as a whole.
None of this is surprising as people are friends and colleagues for the most part both on and off the field of play. No one wants to wave a big stick or make a decision about who is right or wrong because of the fall out that will follow.
The role of the board in dispute resolution
It is certainly not the role of the board to play any role in seeking to resolve a dispute. Members of the board are inherently conflicted as they will each know one or both parties and cannot be impartial when the interests and reputation of the club or sport is on the line.
Some club and sport constitutions provide for the board, or perhaps the president or chairman, to be the mediating body and if that is you then advice should be sought to amend your constitution.
What is mediation and when should it commence?
It is at an early point in an argument or dispute where mediation should be employed. This is before it gets out of hand, before reputations are sullied and trashed and before irreparable damage is done to friendships and the fabric of the club.
Mediation means that no one from the club or sport needs to be involved at all.
Mediation allows for the complainant and the respondent, the disputants (parties to the dispute) to put their positions to each other in a structured conversation managed by a mediator who is entirely independent of the parties, and the club or sport, in a confidential meeting.
Mediation is a controlled process where people can come to an agreement that they can live with. They may not get exactly what they want but they are in control of an outcome.
This is not the case when a third party umpire, such as a judge or arbitrator, has the power to make a decision and impose an outcome whether it be positive or negative, whether it costs money or not and whether a party can live with it or not.
Mediation is much cheaper than litigation or investigation. But if the complaint is about feeling aggrieved about someone’s behaviour then it still can be an expensive way of getting an apology.
Mediation is much quicker than litigation or investigation because it can be arranged to suit the parties, isn’t subject to lengthy delays and can be over in a matter of days or weeks once the parties reach agreement to mediate.
But most of all it enables parties to be involved in a decision about their own lives which is, ideally, one they can live with. Once it’s over life can be lived again.
The mediator is a person who has training and/or experience in dispute resolution, is impartial and independent. He or she may be a lawyer, may have an industrial relations background, may be a family laws dispute resolution practitioner or someone who has experience in other areas of dealing with workplace and similar disputes.
The club or sport appoints the mediator and may or may not pay his or her fees. In some instances it is appropriate for each party to pay half the fees and in others the sport or club pays the fees. In family law cases, for example, each party always pays half.
The mediation process
Mediation is both a structured and managed process where the parties get to talk to the mediator both jointly and individually, and to each other with a view to seeing if there is common ground for an agreement to be reached.
The mediator will control the conversation to ensure that the parties don’t speak over the top of each other, are courteous at all times, listen, have the opportunity to speak freely in what are called joint sessions and in private sessions (which are one on one with the mediator) and are able to truly bring to the table their thoughts and offers on a way to resolve the matter.
A mediation session might run like this:
- Welcome from the mediator who confirms the proceedings are confidential
- Either party may start explaining their views on the complaint. Quite often it is the complainant who starts.
- The respondent then has his or her say about the complaint.
- The mediator then sums up what each party has said and identifies common themes arising from what has been said. The list is usually of about 3 to 5 topics which may include communication, feedback, expectations, payment, respect, trust, money, perceptions, working relationship and anything that is relevant to this dispute
- The parties then proceed to say what they think around the topics identified.
- Once that conversation has come to a natural end the mediator will spend time with each of the parties on a one on one basis
- In the private sessions each party will have the opportunity to reflect on what has occurred, to add anything not previously said, to think about options for settlement and what he or she would be prepared to live with
- Both parties then return to the table for a final session where the options for settlement are put on the table, discussed, and where possible, agreed.
- If agreement is reached it is written up and signed concluding the matter.
- The mediator confirms finally, and has been during the mediation, that the proceedings are and have been, confidential.
Mediations take the time they take and can take half a day, a whole day and sometimes even longer. They ought not be rushed and when setting the time it is advisable to allow say 2-3 hours minimum as adjourning to another day can affect the flow of the discussion, particularly if a satisfactory conclusion is within sight.
Where no agreement is reached
If the parties cannot come to an agreement to conclude the mediation, the complainant may decide not to pursue the matter or may choose to have the complaint further dealt with by the club or association.
This may include seeking to have the complaint investigated by an independent investigator or take court action if that is an option.
The mediator will have discussed the risks of not coming to an agreement in both joint and private sessions. The main risk is that with an independent third party, such as an investigator, the outcome is not in the control of the parties. That outcome might be good, might be bad, might be okay but is one over which the neither the complainant nor respondent will have any control.
One of the benefits of mediation is that it is a short, sharp process wholly within the control of the parties. There is no need to wait for other people to be available, to wait for a court date or to wait for an investigation to take whatever time that takes.
Mediation is about compromise, as rarely does either party get exactly what they might have hoped for or expected, and results in a solution that can be lived with because it is one reached by the parties themselves.
What if someone refuses mediation?
Not everyone is prepared to mediate and mediation, like a horse to water, can’t be forced.
The difficulty is that in many club and sport constitutions mediation is a mandated requirement which must be met before any other course of action is possible. The clause will say something like “the parties shall mediate”. The clause does not say “the parties may mediate” which would make it optional.
Without delving into the legal niceties of a refusal to mediate when it is mandated it maybe that a mediation date, time and place is set, with mediator ready to go. If one or more of the parties fails to turn up, or arrives and then leaves soon after, that may constitute mediation for the purpose of meeting the constitution’s obligation to mediate.
If that is the case and the mediation fails it is then open for other processes, including investigation, to follow.
Investigations of complaints
Investigations are generally not in the best interests of a club or sport to the extent that they only prolong the matter. They can take months or weeks to conclude, require the involvement of many more people including witnesses to the altercation or whatever it was that sparked the complaint.
They likely commence months after the initial complaint was raised so many others in the club or sport will have moved on or forgotten the details. The independent investigator will make recommendations as to penalties or sanctions to the board which will then take its time to ponder what to do. Everyone involved will be on the hook for a long, and possibly not very happy, time.
Furthermore, there is the financial cost of the investigation which will need to be met by the club or sport.
Investigations are essential to the good governance and good order of a club or sport when poor conduct needs to be dealt with, but if a prompt process is put in place then they may not be necessary.
Nipping complaints in the bud, as soon as possible if possible, is the best policy.
The ideal process
- Once a complaint is brought to the attention of the board it should refer the matter to the MPIO
- The MPIO should be in place and appropriately skilled to deal with complaints
- The MPIO should then as quickly as possible fulfil his or her role in assisting the complainant, providing information about options and do what can be done within the remit to resolve the matter without mediating or investigating
- If it becomes clear to the MPIO that there will be no outcome he or she should inform the board which in turn should appoint a mediator which will be necessary if mandated in the constitution and ideal if it is not.
- The consent of the parties to mediation will need to be obtained and an arrangement made for the payment of a mediator’s costs.
- The mediation should be held at the earliest possible date.
Underpinning all of this is the need for each step to be taken quickly, one upon the other, to avoid delay, desperation, disappointment and dysfunction which will adversely affect so many, not least the parties, if the process is drawn out. It is easy to put a dispute into the too hard basket, but to do so is not in the best interests of everyone.
When mediation is not suitable
In some instances mediation should not be conducted including when:
- One party is not willing to mediate (subject to any mandatory requirements in the sport or club constitution)
- The versions of events are so far apart that mediation would likely fail
- A party is acting in bad faith (e.g., when a party wants to use it for extraneous purposes such as sending a broad public message contrary to mediation being confidential; or where a party is unwilling to look for solutions)
- There is a safety or intimidation issue where one party is in fear of the other or there is a distinct power imbalance (eg in family law, domestic violence cases)
- It is a criminal matter which is dealt with via police prosecution
- Where an accusation has been made against a party who then seeks public vindication then legal action may be a better choice
- One party is affected by drugs and/or alcohol
- One party is emotionally out of control and can’t be consoled
- A party cannot advocate for him or herself and has no representative
- A party has mental wellbeing or mental health problems.
- The matter involves proven serious allegations regardless of the wishes of the complainant
This information sheet was developed by Play by the Rules in cooperation with Margot Foster AM BA LLB | firstname.lastname@example.org