Abstract
Now that sport is big business nationally and internationally, it is not surprising that sports disputes – especially commercial ones – are on the increase. So, the question naturally arises, how best to resolve them. By traditional methods - through the courts – or by modern ones, that is, by alternative dispute resolution (ADR)? ADR takes many forms and mediation is proving to be an appropriate and effective way of settling sports disputes of various kinds extra-judicially. Mediation has not escaped the attention of the European Union, which over the years has taken a particular interest in sport as an economic activity, and this article will take a look at the recent EU Directive on Mediation and its application to and likely impact on sports business disputes in particular.
Highlights
(6) Mediation can provide a cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties
"Mediation" means a structured process, named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings 7 concerning the dispute in question
It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question
Summary
The Directive is concerned with promoting good practices in mediation and, in particular, 12 encouraging Codes of Conduct of Mediators and initial and further training of Mediators (Article 4). Includes the following important provision in article 5.2: This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system In effect, this latter provision encapsulates certain legal principles relating to the practice of 16 Court-encouraged mediation which have been established in two landmark decisions of the Courts: one by the English Court of Appeal; the other by the European Court on Human Rights The latter concerns situations where a party to Court proceedings is encouraged by the Judge to opt for ADR, rather than pursuing those proceedings. Mediation is not appropriate where injunctive relief, publicity or a legal precedent are required; the Courts are the forum to be used for settling disputes in such cases
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