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Viadrina-Schriftenreihe zu Mediation und Konfliktmanagement

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To what extent do institutional mediation rules in the sports sector contain the principles of mediation?A comparative analysis of selected mediation regulations from the sports sector


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Herausgegeben von Dipl.-Psych. Nicole Becker, M. A.Prof. Dr. Ulla Gläßer, LL. M.Dipl.-Psych. Kirsten Schroeter Dr. Felix Wendenburg, M. B. A.

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Marcel Woitalla

To what extent do institutional mediation rules in the sports sector contain the principles of mediation?A comparative analysis of selected mediation regulations from the sports sector

Master-Studiengang Mediation und Konfliktmanagement

MasterarbeitStudiengang 2016/2018

© Wolfgang Metzner Verlag, Frankfurt am Main 2019

Das Werk ist urheberrechtlich geschützt.Jede Verwertung außerhalb der Freigrenzen des Urheberrechts ist ohne Zustimmung des Verlags unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen.

Printed in GermanyISBN 978-3-96117-048-7ISSN 2365-4155

Bibliografische Information der Deutschen BibliothekDie Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.

Institutional Mediation Rules in Sports – Principles and Regulatory Treatment

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Table of Content

Table of Content 1 Preface 4 1. Introduction 5

1.1. Research Question and Research Objective 5 1.2. State of Research 7 1.3. Procedure of Investigation 8

2. Measure of Investigation 10 2.1. Understanding of Mediation 10 2.2. Principles of Mediation 12

2.2.1. Principle of Voluntariness 12 2.2.2. Principle of Self-Determination 13 2.2.3. Principle of Confidentiality 14 2.2.4. Principle of Multipartiality 15 2.2.5. Principle of Focusing on Interests in Connection with the Five-Phase Model 16

2.2.5.1. Five-Phase Model 17 2.2.5.1.1. Phase 1: Opening 17 2.2.5.1.2. Phase 2: Survey 18 2.2.5.1.3. Phase 3: Clarification of Interests and Treatment of the Fields of Conflict 18 2.2.5.1.4. Phase 4: Finding of Solutions 19 2.2.5.1.5. Phase 5: Closing 20

2.2.5.2. Results 20 2.3. Institutional Mediation Rules in Sports 20

3. Principles and Regulatory Treatment 24 3.1. The Relationship between “Principles” and “Rules” 24 3.2. Selected Regulatory Areas 25

3.2.1. Definition of Mediation 26 3.2.2. Participation 29

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3.2.2.1. Regulatory Treatment 29 3.2.2.2. Comment 31

3.2.3. Dealing with Representatives 32 3.2.3.1. Regulatory Treatment 32 3.2.3.2. Comment 35

3.2.4. Selection and Role of the Mediator 35 3.2.4.1. Selection of the Mediator 36

3.2.4.1.1. Regulatory Treatment 36 3.2.4.1.2. Comment 38

3.2.4.2. Role of the Mediator 39 3.2.4.2.1. Conduct of the Procedure 39

3.2.4.2.1.1. Regulatory Treatment 39 3.2.4.2.1.2. Comment 42

3.2.4.2.2. Mediator’s Influence on Conflict Solution 44 3.2.4.2.2.1. Regulatory Treatment 45 3.2.4.2.2.2. Comment 47

3.2.5. Dealing with the Principle of Multipartiality 48 3.2.5.1. Regulatory Treatment 48 3.2.5.2. Comment 51

3.2.6. Dealing with the Principle of Confidentiality 52 3.2.6.1. Regulatory Treatment 52 3.2.6.2. Comment 56

3.2.7. Dealing with the Settlement 57 3.2.7.1. Regulatory Treatment 58 3.2.7.2. Comment 60

3.2.8. Termination 61 3.2.8.1. Regulatory Treatment 61 3.2.8.2. Comment 64

4. Conclusions and Suggestions 66


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Bibliography 73 Internet Sources 77 List of Acronyms 79 List of Tables 82 Appendices – Documentation 83

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Preface

This thesis was submitted as master thesis at the Faculty of Law of the European University Viadrina Frankfurt/Oder in spring semester 2018. The date of the oral examination was 10th October 2018.

In addition to my interest in mediation and ADR, I am also interested in sports and its legal issues. Therefore, it was a special concern of mine to write the mas-ter thesis on a topic that combines mediation, sports, and law.

During the literature research I noticed that mediation rules in sports are large-ly unexplored. In this regard, the idea came up to examining to what extent the mediation principles are contained in the mediation rules in the field of sports and working out the underlying understanding of mediation, including the similarities and differences between the individual mediation codes.

Since most mediation codes in the field of sports are written in English, the present thesis was written in English.

At this point I would like to thank all the people who supported me during the preparation of the master thesis, both professionally and personally:

I thank my advisor, Mr. Christof Berlin, for his professional impulses and suggestions in connection with this work. I am also grateful to Mr. Arno Gotting for preparing the second opinion.

Furthermore, I would like to thank my fellow students of the Master’s Pro-gram in Mediation and Conflict Management at the European University Viadri-na Frankfurt/Oder for their numerous suggestions and ideas during the implemen-tation of the master thesis.

Finally, my greatest thanks go to my family and friends, who supported me unconditionally not only during the preparation of the master thesis, but through-out the entire time of my studies.

Marcel Woitalla, March 2019


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1. Introduction

In order to introduce the topic, the research question and the research objective is discussed below. Subsequently, a survey refers to the existing literature. Finally, the procedure of investigation is shown.

1.1. Research Question and Research Objective

The field of sports is a complex matter involving a large number of participants, including athletes1, managers, clubs, sponsors, and sports organizations. In this respect, it is not surprising that conflicts often arise between these participants. In the field of sports, a multitude of emerging conflicts is often resolved through arbitration procedures.2

However, the Woodhall/Warren case has also shown that mediation is suitable for resolving sports-related disputes.3 In this case, Woodhall, the current World Boxing Council (WBC) Super Middleweight Champion, and Warren, the Boxing Promoter, opted to resolve their contractual dispute by mediation rather than pursue it through litigation. The mediation process enabled Woodhall and Warren to resume their working relationship after settling the dispute. Following the procedure, Warren said: “It was important to all concerned to have brought this matter to a speedy conclusion. We have shaken hands and look forward to resum-ing our successful partnership.”4

The purpose of the mediation procedure – the activation of the self-responsibility of the parties – is based on the assumption that no one can evaluate

__________ 1 For simplicity's sake and to support ease of reading, the use of the male gender in this thesis applies to both males and females. 2 Many sports-related arbitration procedures are carried out at the Court of Arbitration for Sport (CAS). For more information about the CAS, see McLaren, The Court of Arbitration for Sport: An Independent Arena for the World's Sports Disputes, Valparaiso University Law Review, Vol. 35, No. 2, 2001, 379 ff, retrieved from http://scholar.valpo.edu/vulr/vol35/iss2/3 (last visited Aug. 08, 2018). 3 Blackshaw, Mediating sports disputes, in Nafziger/Ross (eds.), Handbook on International Sports Law (2011) 81f; Shair Mohamad/Kamarudin, Mediation as an effective tool for resolving sports disputes, International Journal of Business, Economics and Law, Vol. 7, Issue 4, August 2015, 81 (84), retrieved from http://ijbel.com/wp-content/uploads/2015/09/KLIBEL7_Law-31.pdf (last visited Aug. 08, 2018). 4 Centre for Effective Dispute Resolution (CEDR), Mediation – Boxing Clever!, https://www.cedr.com/press/?item=Mediation-Boxing-Clever (last visited Aug. 08, 2018).

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the elements that should be part of a conflict resolution even approximately as well as the parties themselves.5 Because of this, it is not unexpected that different bodies and institutions in the field of sports (e.g. the CAS), have created their own mediation rules and codes in order to help participants solve their sports-related disputes within the family of sports.

However, mediation contains certain principles that are characteristic of this type of conflict resolution, especially in order to enable the delimitation to other Alternative Dispute Resolution (ADR) procedures. Therefore, this thesis shall examine the following question: “To what extent do institutional mediation regu-lations in the sports sector contain the principles of mediation?” In order to an-swer the raised research question, it is necessary to examine the regulatory treat-ment of the principles of mediation in selected mediation regulations from the sports sector. Furthermore, the similarities and differences between the regulatory treatment of the individual bodies and institutions are identified as well. From the researcher's point of view, it is also of interest to investigate to what extent sports-specific peculiarities are represented in the mediation regulations to be investigated. For example, sports often require “quick” decisions, which could affect the rules governing the time frame of mediation. It is also exciting to exam-ine whether the institutions and bodies make special demands on the expertise of the “sports” mediator in their rules and codes.

The research objective is to strengthen mediation as an ADR process in the field of sports and to raise awareness of the importance of the principles of medi-ation. A further objective is to highlight the similarities and differences between the regulations of the enacting institutes and associations in the field of sports in order to help them to reflect upon their own rules. Therefore, this thesis should help to stimulate a discussion between the bodies and institutions in the field of sports on the handling of the principles and regulatory treatment in their codes.

__________ 5 Wendenburg, Mediation – flexible Gestaltung innerhalb fester Strukturen, ZKM 2014, 36; cf. Hesse, Is mediation suitable to resolve sports related disputes?, https://www.lawinsport.com/topics/articles/item/is-mediation-a-suitable-to-resolve-sports-related-disputes (last visited Aug. 08, 2018).


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1.2. State of Research

A great deal has been written and said about mediation and sports. While Marschner6 has compared the different procedural leaders at soccer games, Rib-ler7 has described the management of conflicts in sports and the practical applica-tion of mediation in amateur and youth soccer. Pulter/Ribler8 have explained how mediation can be anchored in the sports system by presenting the project “Inter-cultural Conflict Mediation/Mediation in Soccer.” Grabowski9 has discussed why mediation may offer a remedy for solving of sports-related conflicts by establish-ing a forum for open communication, which is from his point of view currently missing in many sports negotiations. Shair Mohamad/Kamarudin10 have high-lighted some advantages of mediation in order to show that mediation is the most effective and resolution-friendly procedure to settle sports disputes. Sandu11 has researched why mediation has the potential to succeed where arbitration has failed by describing the arbitration procedures of national and international insti-tutions and their arbitrational responsibilities. Furthermore, based on 40 inter-views with athletes and staff, and from his own professional and academic expe-rience as mediator, he has presented the main benefits of mediation that can be used in sports disputes.12

Within the field of “mediation and sports”, some authors have already dealt with the institutionalization of mediation in sports. Mironi13 has mapped the state of mediation in sports, especially the degree of institutionalization of mediation on the international level, such as in the CAS, European Club Association (ECA),

__________ 6 Marschner, Fußball ohne Schiedsrichter – ein Beitrag zu einer besseren Welt? Ein Vergleich unterschiedli-cher Verfahrensleiter im Fußballspiel (2011). 7 Ribler, Mediation im (Fußball-) Sport, in Trenczek/Berning/Lenz/Will (eds.), Mediation und Konfliktma-nagement2 (2017) 5.18 m.n. 1 ff. 8 Pulter/Ribler, Mediation im Sportsystem, ZKM 2003, 15 ff. 9 Grabowski, Both Sides Win: Why Using Mediation Would Improve Pro Sports, Journal of Sports and Entertainment Law, Vol.5, No.2, 2014, 189 ff, retrieved from http://harvardjsel.com/wp-content/uploads/2014/11/Grabowski.pdf (last visited Aug. 08, 2018). 10 Shair Mohamad/Kamarudin, International Journal of Business, Economics and Law, Vol. 7, Issue 4, August 2015, 83. 11 Sandu, ADR in Sport Disputes: Should Mediation be Used over Arbitration?, Conflict Studies Quarterly, Issue 11, April 2015, 57 ff, retrieved from http://www.csq.ro/wp-content/uploads/CSQ-11.-Sandu.pdf (last visited Aug. 08, 2018). 12 Sandu, Conflict Studies Quarterly, Issue 11, April 2015, 57 ff. 13 Mironi, The promise of mediation in sport-related disputes, The International Sports Law Journal 2017, 131 (144).

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WBC, and International Ice Hockey Federation (IIHF); he has also provided recommendations for promoting the idea of mediation in sports. Godin14 has examined multiple case studies of mediations conducted through the Sport Dis-pute Resolution Centre of Canada (SDRCC) with the goal of identifying success-ful mediation strategies for high-performance sports disputes.15 Furthermore, Blackshaw has already emphasized that mediation is not only offered by com-mercial organizations such as CEDR, but also by sports bodies, such as the CAS, SDRCC, Sport Resolutions (UK) (SRUK), or the Fédération Internationale de Football Association (FIFA) Dispute Resolution Chamber.16 In this context, Blackshaw has ascertained that mediation services provided by sports bodies are a complete subject in their own right and worthy of further study.17 Therefore, this thesis shall contribute to closing this research gap.

1.3. Procedure of Investigation

The first Chapter deals with the research question and the research objective. Furthermore, the state of research is presented.

The second Chapter presents the measure of investigation. First, the under-standing of mediation shall be determined in order to be able to differentiate between mediation and other ADR procedures; thus, the principles of mediation are also explained. In this context, the principle of focusing on interests is also discussed and the five-phase model as the predominant mediation model in Ger-

__________ 14 Godin, Sport Mediation: Mediating High-Performance Sports Disputes, Harvard Negotiation Journal, Vol. 33, 2017, 25 ff, retrieved from https://naarb.org/wp-content/uploads/2018/06/Sports-Mediation-Mediating-High-Performance-Sports-Disputes.pdf (last visited Aug. 08, 2018). 15 Godin mentions that, from his point of view, currently, most professional sports do not widely use mediation as a formal part of their dispute resolution processes, although informal forms of dispute resolution may well be used, and parties do sometimes opt to mediate in individual cases, see Godin, Harvard Negotiation Journal, Vol. 33, 2017, 26f. 16 Blackshaw in Nafziger/Ross, Handbook on International Sports Law 82; also worth reading: Blackshaw, Mediating Sports Disputes, National and International Perspectives (2002) 49 ff; Blackshaw in Nafziger/Ross, Handbook on International Sports Law 65 ff; Blackshaw, The Court of Arbitration for Sport: An International Forum for Settling Disputes Effectively ‚Within the Family of Sport’, Entertainment Law 2003, 61 ff; Blacks-haw, ADR and Sport: Settling Disputes Through the Court of Arbitration for Sport, The FIFA Dispute Resolu-tion Chamber, and the World Intellectual Property Organization (WIPO) Arbitration & Mediation Center, Marquette Sports Law Review, Vol. 24, Issue 1, 2013, 1 ff, retrieved from http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1609&context=sportslaw (last visited Aug. 08, 2018). 17 Blackshaw in Nafziger/Ross, Handbook on International Sports Law 82.


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many is presented. Since there are different institutions and bodies in the field of sports, which have enacted their own mediation rules, these institutions and bod-ies, along with their manner of regulating mediation, are presented. In addition, the investigation requires choosing certain institutions and bodies that enable comparability of their rules and codes.

In the third Chapter, the research question is discussed. For this purpose, the regulatory treatment of the principles in the selected mediation codes from the sports sector is examined. It should be noted that the set of rules is composed of both principles and rules. Therefore, it is appropriate to discuss the relationship between “principles” and “rules”. Subsequently, the regulatory treatment of me-diation principles in the selected mediation codes is examined. In order to provide comparability between the mediation codes of the selected bodies and institu-tions, therefore, some regulatory areas are to form by the author.

Finally, in fourth Chapter, the key findings are summarized and some sugges-tions about the regulatory treatment of the principles are offered to the bodies and institutions in the field of sports.

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2. Measure of Investigation

Gläßer has already noted that comparison of the individual definitions and the diversity of the procedures (which are referred as “mediation” both in literature and in practice) shows that there is no full agreement as to the constitutive pro-cess characteristics of mediation.18 Therefore, with regard to the raised research question, it is necessary to create a measure of investigation. The understanding of mediation and the principles of mediation are discussed. Finally, the institu-tions and bodies that have issued mediation rules in their codes are presented. In addition, in order to discuss the raised research question, some of these institu-tions and bodies, along with their rules and codes, must be explored.

2.1. Understanding of Mediation

Even if definitions always have a limited range and may not claim absoluteness,19 it is nonetheless necessary to determine the understanding of mediation in this thesis in order to delimit mediation from other ADR procedures such as concilia-tion. Describing a distinction between mediation and other ADR procedures is made more difficult by the fact that the international mediation literature has not formed a universal terminology for mediation.20 Nevertheless, in the international review, the definition of mediation has a common core: according to this core, mediation is a procedure, which is performed on the voluntary basis of the par-ties, in which a mediator without power of decision systematically promotes

__________ 18 Cf. Gläßer, Mediation und Beziehungsgewalt 61; for the different styles and goals of mediation, see Gläßer, Mediation und Beziehungsgewalt 67 ff; Wendenburg, Der Schutz der schwächeren Partei in der Mediation (2013) 17 ff; Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, Harvard Negotiation Law Review, Vol. 1, No. 7, 1996, available at http://scholarship.law.ufl.edu/facultypub/668 (last visited Aug. 08, 2018). 19 Trenczek, Außergerichtliches Konfliktmanagement (ADR) und Mediation – Verfahren, Prinzipien, Modelle, in Trenczek/Berning/Lenz/Will (eds.), Mediation und Konfliktmanagement2 (2017) 1.1. m.n. 23. 20 Hopt/Steffek, Mediation – Rechtsvergleich, Regelungsmodelle, Grundsatzprobleme, in Hopt/Steffek (eds.), Mediation (2008) 16; Gläßer, Mediation und Beziehungsgewalt (2008) 61; Rabe/Wode, Mediation: Grundla-gen, Methoden, rechtlicher Rahmen (2014) 15; for more on diversity in mediation practice, see Alexander, Global Trends in Mediation, in Trenczek/Berning/Lenz/Will (eds.), Mediation und Konfliktmanagement2

(2017) 6.2. m.n. 8 ff.


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communication between the parties with the objective of facilitating a self-responsible conflict solution by the parties themselves.21

In this respect, mediation and conciliation agree that the third party has no binding decision-making power in both cases, which makes a distinction between these procedures additionally difficult.22 In order to be able to differentiate be-tween these procedures, Röthemeyer has proposed the “measure of solution activ-ity” as a criterion of delimitation.23 According to this criterion, a mediator, in principle, does not propose solutions and recommendations.24 By contrast, a conciliator proposes concrete recommendations for a solution and for this reason simultaneously assumes (co-) responsibility for the conflict resolution.25 A major criticism of the missing distinction between mediation and conciliation is that the conversational behavior of the parties varies significantly depending on whether it is their goal to persuade a third party of the plausibility and legality of their point of view, or whether they wish to develop an interest-based and amicable solution together with the other conflict party.26 This criticism is comprehensible and justified. Therefore, the definition of mediation for the purposes of this thesis reads as follows: mediation is a confidential and structured procedure in which the parties voluntarily and self-determinately, with the support of a multipartial third party who is not allowed to propose solutions and has no decision-making power (“the mediator”), strive for an amicable conflict resolution based on the parties’ needs and interests.

It should also be noted that the mediation comprehension of the author is based on § 1 MediationsG27 and Gläßer28. Furthermore, the author’s definition is

__________ 21 Hopt/Steffek in Hopt/Steffek, Mediation 12. 22 Furthermore, demarcation problems arise from the fact that the terms in practice and science are often used identically; e.g. in Ireland, where the terms “conciliation” and “mediation” are often used synonymously, see Hopt/Steffek in Hopt/Steffek, Mediation 17. 23 Röthemeyer, Die Schlichtung – ein Stiefkind der Gesetzgebung, ZKM 2013, 47 (49). 24 Röthemeyer, ZKM 2013, 49. 25 Klowait/Gläßer, Einführung, in Klowait/Gläßer (eds.), Handkommentar-MediationsG2 (2018) Einl. m.n. 37. 26 Wendenburg, Mediationsgesetzgebung: Regelung eines flexiblen Verfahrens im internationalen Vergleich, in Haft/Schlieffen (eds.), Handbuch Mediation3 (2016) § 58 m.n. 17. 27 § 1 MediationsG, available at https://www.gesetze-im-internet.de/mediationsg/BJNR157710012.html (last visited Aug. 08, 2018): “(1) Mediation ist ein vertrauliches und strukturiertes Verfahren, bei dem Parteien mit Hilfe eines oder mehre-rer Mediatoren freiwillig und eigenverantwortlich eine einvernehmliche Beilegung ihres Konflikts anstreben. (2) Ein Mediator ist eine unabhängige und neutrale Person ohne Entscheidungsbefugnis, die die Parteien durch die Mediation führt.”

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significantly influenced by the Master's Program in Mediation and Conflict Man-agement at the European University Viadrina in Frankfurt (Oder).

2.2. Principles of Mediation

It is generally accepted that the process of mediation is determined by specific principles. On one hand, these principles are important in order to differentiate mediation from other procedures29; on the other hand, adhering to these princi-ples (in addition to the procedural structure) can ensure that the mediation parties are permanently pacified after termination of the mediation.30 An inobservance with the principles risks that a party feels disadvantaged or even is disadvan-taged.31 In this regard, it is primarily the task of the mediator to ensure that the principles are observed in every phase of the process.32 From the aforementioned understanding of mediation, some of these principles can be derived. The princi-ples of mediation are as follows: voluntariness, self-determination, confidentiali-ty, multipartiality, and focusing on the interests. These principles are described below.

2.2.1. Principle of Voluntariness

Voluntariness is one of the central values of mediation.33 The principle of volun-tariness refers to the voluntary participation of the parties in the mediation pro-cess.34 The conflict parties shall decide for themselves and without external coer-cion whether a mediation process should even be initiated and when it should be carried out.35 Only a volitional mediation procedure of the parties can lead to success.36 The voluntary participation of the parties should create an “open nego-

28 See Hagel, Begriffsbestimmungen, in Klowait/Gläßer (eds.), Handkommentar-MediationsG2 (2018) § 1 m.n. 10; Gläßer, Verfahren; Aufgaben des Mediators, in Klowait/Gläßer (eds.), Handkommentar-MediationsG2 (2018) § 2 m.n. 82; siehe auch Rabe/Wode, Mediation 9 ff. 29 Cf. Gläßer, Mediation und Beziehungsgewalt 61. 30 Kracht, Rolle und Aufgabe des Mediators – Prinzipien der Mediation, in Haft/Schlieffen (eds.), Handbuch Mediation3 (2016) § 13 m.n. 98. 31 Kracht in Haft/Schlieffen, Handbuch Mediation3 § 13 m.n. 98. 32 Cf. Kracht in Haft/Schlieffen, Handbuch Mediation3 § 13 m.n. 98. 33 Keydel, Zum Prinzip der Freiwilligkeit der Mediation, ZKM 2011, 61. 34 Cf. Marx, Das Prinzip der Freiwilligkeit der Mediation, ZKM 2010, 132. 35 See Hagel in Klowait/Gläßer, Handkommentar-MediationsG2 § 1 m.n. 14. 36 Marx, ZKM 2010, 132.


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tiation atmosphere.”37 Furthermore, the principle of voluntariness also includes the ability of the parties and the mediator to terminate the mediation process at any stage.38

2.2.2. Principle of Self-Determination

The principle of self-determination emphasizes the importance of the autonomy of the parties in the mediation procedure.39 The purpose of the mediation proce-dure – the activation of the self-responsibility of the parties – is based on the assumption that no one can evaluate the elements that should be part of a conflict resolution even approximately as well as the parties themselves.40 For this reason, comprehensive information is an indispensable prerequisite for a self-determined solution of the parties.41 The respective parties are only able to weigh and decide if they are also fully aware of all of the information that is necessary to make a decision.42

Furthermore, a self-determined conflict resolution requires active participation of the parties.43 A mere passive presence of one or more parties is unlikely to lead to an amicable conflict resolution, as the interests44 of the passive party are not necessarily considered.45 In this respect, the conflict parties retain responsibility for both the mediation’s content and its results46 (i.e. it is ultimately the responsi-

__________ 37 Marx, ZKM 2010, 132. 38 Cf. Marx, ZKM 2010, 132. 39 Rabe/Wode, Mediation 21. 40 Wendenburg, ZKM 2014, 36. 41 Cf. Rabe/Wode, Mediation 21; the principle of awareness of all necessary information can be seen as an own principle as well, e.g. see 2.3.3. Richtlinien der Bundesarbeitsgemeinschaft für Familienmediation e.V. (BAFM) für die Mediation in Familienkonflikten, available at: https://www.bafm-mediation.de/verband/richtlinien-der-bafm-fur-die-mediation-in-familienkonflikten/#Ziele (last visited Aug. 08, 2018) or Duss-von Werdt/Mähler/Mähler (eds.), Mediation: Die andere Scheidung (1995) 120; Kracht in Haft/Schlieffen, Handbuch Mediation3 § 13 m.n. 114 ff; Rabe/Wode, Mediation 21f. 42 Rabe/Wode, Mediation 21; in order to receive and evaluate the necessary information, it is also conceivable to involve other parties in the proceedings, see Rabe/Wode, Mediation 21. 43 Cf. Rabe/Wode, Mediation 21. 44 Interests in the sense of mediation can be defined as “the relevant criteria in the individual case, which must be taken into consideration in a conflict resolution, so that the result is comprehensively satisfactored for the parties.”, see Gläßer, Mediation und Beziehungsgewalt 81; Gläßer/Kirchhoff, Lehrmodul 2: Interessenermitt-lung, ZKM 2005, 131. 45 Rabe/Wode, Mediation 21. 46 According to Marx the content-related responsibility for the results can be seen as an expression of the principle of voluntariness, see Marx, ZKM 2010, 132.

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bility of the parties to exchange all relevant information, identify the interests at hand, and develop creative solutions).47 Nevertheless, the mediator is responsible for control of the procedure (i.e. he has the duty to determine the procedure in such a way that the parties can each voice their issues, relevant beliefs, and inter-ests to the same extent).48 The mediator is also responsible for the structuring, the communicative and methodological design, the visualization, and, as a rule, the documentation of the mediation process.49 Thereby, a significant added value of mediation compared to a negotiation lies in the discharge, which results from the fact that the parties yield the responsibility of the determination of the procedure to the mediator and can therefore concentrate entirely on the discussion of the conflict themes.50

2.2.3. Principle of Confidentiality

Blackshaw has referred to the principle of confidentiality as “all-important re-quirement” of ADR procedures.51 Confidentiality is also a fundamental principle of mediation.52 The work of the parties on an amicable solution is facilitated if the parties do not remain in mutual distrust caused by the conflict, but are able to cooperate with trust and frankness.53 Furthermore, the principle of confidentiality must also be observed in the relationship between the mediator and the parties.54 This essentially refers to the treatment of information from the parties and the mediator in relation to external parties, who are not involved in the mediation

__________ 47 Cf. Gläßer, Mediation und Beziehungsgewalt 78; cf. Rabe/Wode, Mediation 21; therefore, through the principle of self-determination, mediation can also be distinguished from other procedures, in which a third party can settle the entire conflict, e.g. judicial and arbitrational proceedings. 48 Cf. Montada/Kals, Mediation: Psychologische Grundlagen und Perspektiven3 (2013) 63. 49 Gläßer, Mediation und Beziehungsgewalt 78. 50 Wendenburg, ZKM 2014, 37. 51 Blackshaw, Mediating Business and Sports Disputes in Europe, ESLJ 2008, 6 (2), 4, retrieved from https://www.entsportslawjournal.com/articles/10.16997/eslj.61/ (last visited Aug. 08, 2018). 52 See Lilja/v. Lucius/Tietz, Blick auf die Rechtsprechung zum Thema Mediation, in Klowait/Gläßer (eds.), Handkommentar-MediationsG2 (2018) Einl. m.n. 100; Wendenburg criticizes the term of confidentiality as a defining feature of mediation, see Wendenburg, ZKM 2014, 38; Wendenburg, Der Schutz der schwächeren Partei in der Mediation 14. 53 Hilbert, Die Sicherung der Vertraulichkeit des Mediationsverfahrens (2006) 5. 54 Cf. Rabe/Wode, Mediation 18.


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procedure (“external confidentiality”).55 Therefore, the principle of confidentiali-ty and its protection is crucial to finding an amicable solution between the parties.

2.2.4. Principle of Multipartiality

Multipartiality is the ability to take sides equally for all concerned parties, to identify and respect the merits of each party, and to identify with all parties in a network of relationship.56 The term “multipartiality” also describes the attitude of the mediator, which should consist of an active, unbiased, rotational, all-over solicitousness on the conflict narrations and interests of mediation parties.57 The principle of multipartiality is legitimized by the fact that the occasional support of a conflict party ultimately helps all conflict parties in order to achieve the com-mon goal: a constructive, sustainable conflict resolution to which all parties have committed themselves by engaging in mediation.58 The attitude of multipartiality is particularly evident in the case of clear inequalities or asymmetrical distribu-tion of resources between the mediation parties, e.g. with regard to status, posi-tional power, rhetoric and competence to talk, independence, etc.59 In these cases, it is the mediator’s task to draw attention to the risks of inequalities and, together with the parties, to reflect on the effects on the fairness of the procedure in order to support or empower the “weaker” conflict party in this way.60 This principle is very important for the success of a mediation procedure because an infringement of it could shatter the parties’ confidence in the mediator and in the entire media-tion procedure.

The term “multipartiality” is also associated with expectations of the mediator, such as the independence and the impartiality of the mediator towards the par-ties.61 But it should be said that the literature demonstrates an unclear abundance of terminological circumlocutions and delimitations as to the terms “neutrality,”

__________ 55 See Beck, Mediation und Vertraulichkeit (2009) 50 ff; the treatment of information within the mediation procedure within the mediation room will also be referred to as “internal confidentiality.” 56 Beckmann, Neutralität und Allparteilichkeit in der Mediation – Eine Diskussion um Begrifflichkeiten?, ZKM 2013, 51. 57 Wendenburg, ZKM 2014, 37. 58 Montada/Kals, Mediation3 65. 59 Montada/Kals, Mediation3 65. 60 Cf. Montada/Kals, Mediation3 65. 61 Cf. Trenczek, Allparteilichkeit – Anspruch und Wirklichkeit, ZKM 2016, 230 f.

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“independence,” “impartiality,” and “multipartiality.”62 A thorough investigation of these terms, however, would go beyond the scope of this thesis. Nevertheless, from Wendenburg’s point of view, the term “multipartiality” describes the posi-tion and attitude of the mediator in a conceptually more precise manner than the terms “neutrality” and “impartiality”.63 In this investigation, therefore, the terms “neutrality,” “independence,” and “impartiality” shall all be contained within the term “multipartiality.”

2.2.5. Principle of Focusing on Interests in Connection with the Five-Phase Model

Gläßer64 has already noted that the international mediation literature does often not consider the parties’ interests in their descriptions of mediation. However, according to the underlying understanding of mediation, mediation is a user-oriented service that always focuses on the interests of the parties.65 Interests in the sense of mediation can be defined as “the relevant criteria in the individual case, which must be taken into consideration in a conflict resolution, so that the result is comprehensively satisfactored for the parties.”66 Interests unify that they generate an emotional resonance, and are formulated in a solution-oriented, tan-gible, and positive way.67 At the level of content-related treatment of the conflict, the key functions of interests are the promotion of understanding, the enhance-ment of solution creativity, and their use as a benchmark for the quality of a solution.68 Parties’ interests can generally appear at every stage of the mediation

__________ 62 Cf. Beckmann, ZKM 2013, 52f; Montada/Kals, Mediation3 63 ff; following Kacht, the terms “indepen-dence” and “neutrality” describe two parts of neutrality, the “neutrality of the person” and “neutrality in the procedure;” see Kracht in Haft/Schlieffen, Handbuch Mediation3 § 13 m.n. 30 ff. The term “neutrality” is used in the English language, but in the context of mediation the term is problematized as inadequate, see fn. 1 in Trenczek, ZKM 2016, 230. For more information about multipartiality, see Andreasson, Der Begriff der Allparteilichkeit, ZKM 2017, 99 ff; Hohmann, Allparteilichkeit – Die Gratwanderung des Mediators, ZKM 2007, 117f. 63 Wendenburg, ZKM 2014, 37. 64 Fn. 140 in Gläßer, Mediation und Beziehungsgewalt, 65. 65 Cf. Trenczek in Trenczek/Berning/Lenz/Will, Mediation und Konfliktmanagement2 1.1. m.n. 25. For more information about the clarification of interests, see Gläßer/Kirchhoff, ZKM 2005, 130 ff. 66 Gläßer, Mediation und Beziehungsgewalt 81; Gläßer/Kirchhoff, ZKM 2005, 131. 67 Gläßer, Mediation und Beziehungsgewalt 81 f; Gläßer/Kirchhoff, ZKM 2005, 131 f. 68 Gläßer, Mediation und Beziehungsgewalt 79 f.


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process.69 The mediators must therefore pay special attention to the parties’ inter-ests throughout the entire process.70

In contrast to “normal” negotiations, mediation procedures in Germany follow a certain structure of phases71, which include the principle of interest orientation as well. Gläßer describes this so-called five-phase model.72 This model is taught as part of the Master's Program in Mediation and Conflict Management of the European University Viadrina in Frankfurt (Oder) and has influenced this paper’s author in his attitude as mediator.73 For a better understanding, the five-phase model is presented below.

2.2.5.1. Five-Phase Model

The five-phase model specifies the structure of the process and, in this regard, the mediator retains control of the procedure.74 The model consists of the following phases: opening, survey, clarification of interests and treatment of the fields of the conflict, finding of solutions, and closing.

2.2.5.1.1. Phase 1: Opening

Phase 1 is primarily used to build trust and to establish contact between the par-ties and the mediator and create a secure framework for the entire mediation process. After the welcome and introduction, the mediator explains the previous process75 in order to bring all parties to the same level of knowledge. Further-more, the mediator informs the parties in an “opening statement” about the medi-ation and its principles, the goals, his role as a mediator, and his understanding of

__________ 69 Gläßer, Mediation und Beziehungsgewalt 83. 70 Gläßer, Mediation und Beziehungsgewalt 83. 71 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 49. 72 Gläßer, Mediation und Beziehungsgewalt 84 ff; Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 § 2 m.n. 81 ff; Wendenburg, Der Schutz der schwächeren Partei in der Mediation 14 ff; Rabe/Wode, Mediation 9 ff; Aschenbrenner provides a comparison of different conflict resolution models, see Aschenbrenner, Die Logik der Phasen, ZKM 2008, 73 ff. 73 Furthermore, there is a description of phase-related approaches in Knapp (ed.), Konfliktlösungs-Tools5 (2017). 74 See 2.2.2.. 75 These are all steps that have already been initiated by the mediation parties and the mediator in relation to the proceedings.

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mediation.76 He describes the parties’ role during the procedure. Afterwards, the parties can express their wishes, apprehensions, and questions. If they decide to conduct the mediation with the respective mediator, various process agreements (e.g. confidentiality agreements) are made if necessary. Organizational issues are also clarified. Phase 1 ends with the conclusion of a mediation agreement be-tween the parties and the mediator.

2.2.5.1.2. Phase 2: Survey

Phase 2 – the survey – serves primarily as the collection of information and themes in relation to the conflict. In this phase, the parties are offered the oppor-tunity to present their own points of view about the conflict. This should also enable them to “let off steam”. The mediation parties present the facts from their perspectives and continue to name the topics that, from their point of view, are to be clarified. The mediator structures this procedure. In addition, he must sort and structure the given information of the mediation parties and identify any conten-tious and non-disputable statements. The stated “positions” of the parties are rephrased in neutral “themes” by the mediator in consultation with the parties. After the collection and structuring of the parties’ themes, an agenda is finally created in order to work on the individual themes.77

2.2.5.1.3. Phase 3: Clarification of Interests and Treatment of the Fields of Con-flict

The parties’ interests serve as a benchmark for an amicable solution.78 At least according to the five-phase model, the elaboration of the parties’ interests repre-sents the pivotal step in the five-phase model.79 Since Phase 3 serves to clarify and elaborate the parties’ interests, the mediator assists the parties with perceiv-ing, elaborating, and naming their feelings, needs, and interests.80 The mediator helps the parties in order to elaborate the parties’ interests behind their positions.

__________ 76 For the different styles and goals of mediation, see Gläßer, Mediation und Beziehungsgewalt 67 ff; Wen-denburg, Der Schutz der schwächeren Partei in der Mediation 17 ff; Riskin, Understanding Mediators' Orienta-tions, Strategies, and Techniques: A Grid for the Perplexed, Harvard Negotiation Law Review, Vol. 1, No. 7, 1996, available at http://scholarship.law.ufl.edu/facultypub/668 (last visited Aug. 08, 2018). 77 For more information, see Gläßer/Kirchhoff, Lehrmodul 14: Bestandsaufnahme, ZKM 2009, 186 ff. 78 Wendenburg, ZKM 2014, 39. 79 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 49. 80 For further details, see Gläßer/Kirchhoff, ZKM 2005, 130 ff.


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By elaborating on the background of the conflict, pointing out the similarities and differences, and clarifying misunderstandings, this helps the parties to allow different realities, to understand different perspectives, and to develop a deeper understanding for each other. At the same time, this creates the willingness of the parties to work together on a solution.

In this respect, it is not surprising that Klowait/Gläßer appreciate the strict fo-cusing on interests as the most valuable potential and benefit of mediation in order to generate a consensual, value-added, sustainable conflict solution.81

2.2.5.1.4. Phase 4: Finding of Solutions

Phase 4 deals with the finding of solutions and can be divided into Phase 4a and 4b.82 Many different (and even unusual or unrealistic) ideas for resolving the conflict are also developed and collected by the parties in Phase 4a without being evaluated at the same time. During Phase 4a, the mediator’s primary responsibili-ties are to methodically stimulate the creativity of the parties, to appreciate their creativity, and to visualize their named proposals for a solution (as aforemen-tioned, according to the represented understanding of mediation,83 the mediator is not allowed to propose solutions and recommendations).84 In Phase 4b, the par-ties must evaluate the options and select a customized solution that ideally in-cludes all of their elaborated interests and is therefore accepted as a fair solution by all of them. Furthermore, the mediator moderates the individual evaluation steps of the parties and assists them with the composing of their solution packag-es.

__________ 81 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 49. 82 According to Kessen/Troja, phases 4 a and b each represent an independent phase, see Kessen/Troja, Ablauf und Phasen einer Mediation, in Haft/Schlieffen (eds.), Handbuch Mediation3 (2016) § 14 m.n. 4 ff; about the different structure of individual phase models in Germany, see Rauschenbach, Wenn Brainstorming versagt – Kreativitätstechniken in der Mediation (2015) 10 f; for more information about the solution finding, see Gläßer/Kirchhoff, Lehrmodul 7: Lösungsfindung – Teil 1, ZKM 2007, 88 ff; Gläßer/Kirchhoff, Lehrmodul 8: Lösungsfindung – Teil 2, ZKM 2007, 157 ff. 83 See 2.1.. 84 Montada/Kals ask in this context the following question: suppose the mediators have productive options in their heads that the parties themselves do not come up with. Should they not bring them into the mediation? If they do not mention these ideas and the parties are later asked by third parties why they have not thought of this solution, they might also be less satisfied with the agreed-upon, less-effective solution and thus with the mediation, see Montada/Kals, Mediation3 69.

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2.2.5.1.5. Phase 5: Closing

Phase 5, the closing of the mediation procedure, serves as the formalization and hedging of the settlement agreement. The agreement, including regulations that are intended to be implementable and viable, and that are intended to settle the conflict satisfactorily and sustainably, are determined in a written and binding final agreement.85 The task of the mediator is primarily to verify the clarity and unambiguity of the reached and formulated settlement. Furthermore, the parties shall have the opportunity to provide feedback about the procedure and the medi-ator.86

2.2.5.2. Results

The peculiarity of mediation is that it goes through certain phases and follows certain principles.87 Mediation can shortly be described as a structured, interest-based decision-making process.88 According to the represented understanding of mediation, the structure is prescribed by the illustrated five-phase model. In this model, the elaboration of the interests in Phase 3 represents the so-called “heart of mediation.”89 As previously mentioned, Klowait/Gläßer appreciate the strict focusing on interests as the most valuable potential and benefit of mediation in order to generate a consensual, value-added, sustainable conflict solution.90 This is because interests can serve as benchmarks for an effective solution (i.e. a solu-tion that takes the interests of all conflict parties into account).91

2.3. Institutional Mediation Rules in Sports

The following gives an overview of the bodies and institutions in the field of sports that have implemented rules about mediation in their codes. In this context,

__________ 85 Cf. Rauschenbach, Wenn Brainstorming versagt – Kreativitätstechniken in der Mediation 10. 86 For more information about feedback in a mediation, see Ade/Gläßer, Lehrmodul 12: Feedback in der Mediation, ZKM 2009, 60 ff. 87 Cf. Hattemer, Mediation bei Störungen des Arzt-Patient-Verhältnisses (2012) 8. 88 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 50. 89 Kessen/Troja in Haft/Schlieffen, Handbuch Mediation3 § 14 m.n. 25; Gläßer/Kirchhoff, ZKM 2005, 130. 90 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 49. 91 Klowait/Gläßer in Klowait/Gläßer, Handkommentar-MediationsG2 Einl. m.n. 49.


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sports-governing bodies and institutions such as ECA92, Ice Hockey UK (IHUK)93, Swim England94, and WBC95 have set some rules in their codes re-garding mediation to which their members are subjected. As a rule, they have established only isolated mediation rules in their codes and statues.96

Furthermore, some private providers, such as Sport Dispute Solutions Ireland (SDSI), SRUK, or the Sports Tribunal of New Zealand enact mediation rules as well.97 SDSI is an independent, specialized dispute resolution service for Irish sports offering a mediation and arbitration facility.98 The Federation of Irish Sport, which established the SDSI, commends the rules of SDSI to all national governing bodies of sports in Ireland and their members as a fair, inexpensive, and expeditious method of resolving disputes that remain unresolved after all of the procedures within the sports have been exhausted.99 SRUK100 is an independ-

__________ 92 ECA Statues, available at: https://www.ecaeurope.com/media/4160/eca-statutes-2017.pdf (last visited Aug. 08, 2018). 93 ICE HOCKEY UK Disciplinary & Appeals Rules & Procedures, available at: https://www.icehockeyuk.co.uk/disciplinary-appeals-procedure/ (last visited Aug. 08, 2018). 94 Swim England Handbook, available at: http://www.swimming.org/assets/uploads/GoogleView/ASA_Swim_England_Handbook_2018.pdf (last visited Aug. 08, 2018). 95 Rules & Regulations of the WBC, available at: http://wbcboxing.com/downloads/WBC_Rules_&_Regulations_amended_as_of_November_2015.pdf (last visited Aug. 08, 2018). 96 An isolated mediation rule is to be found in Article 8 of the ECA Statues: “The Members shall have the following obligations: [...] i) To conduct ECA Mediation in good faith if a dispute of financial nature would arise with another Member.” Swim England has determined an isolated rule of the Procedure to deal with a complaint by mediation, see Rule 174 of Swim England Handbook. The WBC has established a rule about Compulsory Mediation: “Any open, unresolved claim, controversy, or dispute involving the WBC must be submitted to non-binding mediation in accordance with the following procedures within thirty (30) days after exhaustion of remedies under the administrative procedures outlined in Rule 5.2.”, see 5.3. in the Rules & Regulations of the WBC. 97 Other providers, such as CEDR, Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS), Judicial Arbitra-tion and Mediation Services, Inc. (JAMS), and WIPO are not specifically geared to the sports sector and therefore do not limit their codes to it. In this respect, these providers should be excluded from the investigati-on in advance. 98 Sport Dispute Solutions Ireland (formerly known as “Just Sport Ireland“ (“JSI“)) was established by the Federation of Irish Sport, with support from the Irish Sports Council, to provide an independent specialized dispute resolution facility for Ireland’s sporting community; see Preamble SDSIR. For more information, see the website of SDSI retrieved from http://sportdisputesolutions.ie (last visited Feb. 01, 2019); about mediation in Ireland in general, see Ellger, Mediation in Irland, in Hopt/Steffek (eds.), Mediation (2008) 635 – 670. 99 SDSI, About SDSI, http://sportdisputesolutions.ie/about/ (last visited Feb. 01, 2019). 100 Formerly named Sports Resolution Dispute Resolution Panel (SDRP). The SDRP was created in 1997 by the nine representative umbrella bodies of sports in the UK: British Athletes Commission, British Olympic Association, British Paralympic Association, European Sponsorship Association, Northern Ireland Sports

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ent, not-for-profit dispute resolution service for sports based in the United King-dom. According to the information provided on their website, the mediation service provides a quick and cost-effective way of resolving sports disputes where it is important for the resolution to remain confidential and for the relation-ship between the parties to be preserved.101 The Sports Tribunal of New Zea-land102 was also established as an independent body to hear and decide certain types of disputes for the sports sector. The aim of this Tribunal is to ensure that national sports organizations and other parties to a sports dispute, such as ath-letes, have access to an affordable, just, and speedy means of resolving a sports dispute.103 Furthermore, the CAS104, an independent institution based in Lau-sanne, Switzerland105 that is involved in resolving legal disputes in the field of sports through arbitration and mediation, has also established its own mediation code.106 Canada has a centralized dispute resolution system covering all fields of sports;107 the SDRCC is a Canadian government-funded program for the resolu-tion of sports-related disputes in Canada, including amateur sports disputes that

Forum, Professional Players Federation, Sport & Recreation Alliance, Scottish Sports Association, and Welsh Sports Association. In 2008 the SDRP changed its trading name to “Sport Resolutions (UK)”, see SRUK, Our History, https://www.sportresolutions.co.uk/about-us/our-history (last visited Aug. 08, 2018). 101 SRUK, Mediation, https://www.sportresolutions.co.uk/services/mediation (last visited Aug. 08, 2018); about mediation in UK in general, see Niedostadek, Mediation in Großbritannien, in Haft/Schlieffen (eds.), Handbuch Mediation3 (2016) § 63. 102 The Sports Tribunal was established in 2003 by the Board of Sport and Recreation New Zealand (formerly known as SPARC, now known as Sport New Zealand) under the name of the Sports Disputes Tribunal of New Zealand; see Sports Tribunal of New Zealand, History, http://www.sportstribunal.org.nz/about-us/history/ (last visited Aug. 08, 2018). 103 Sports Tribunal of New Zealand, About the Sports Tribunal, http://www.sportstribunal.org.nz/about-us/about-the-sports-tribunal/ (last visited Aug. 08, 2018). 104 The CAS was established in 1984 by the International Olympic Committee (IOC) and was the last decision-making body to hold the highest sports jurisdiction for sports federations and National Olympic Committees on international sports law issues. For more information about the CAS, see Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes, An Symposium, Journal of Dispute Resolution, Vol. 2012, Issue 1, 2012, retrieved from https://scholarship.law.missouri.edu/jdr/vol2012/iss1/5 (last visited Aug. 08, 2018). 105 For mediation in Switzerland in general, see Kumpan/Bauer, Mediation in der Schweiz, in Hopt/Steffek (eds.), Mediation (2008) 853 – 884. 106 The CAS provides statistics on its mediation procedures. According to this, 65% of all mediations at the CAS concern football cases, and 64% of these football cases deal with transfer contracts. For more information about the statistics in CAS mediation procedures see, Mavromati, Mediation of sports-related disputes: facts, statistics and prospects for CAS mediation procedures, Bulletin TAS CAS Bulletin 2015/2, 24 (30), retrieved from http://www.tas-cas.org/fileadmin/user_upload/Bulletin_2015_2_internet.pdf (last visited Aug. 08, 2018). 107 Mironi, The International Sports Law Journal 2017, 134; the mandate for the organization is set out in the Canadian Sport Dispute Resolution Code.

about mediation in Canada in general, see Ellger, Mediation in

Kanada, in Hopt/Steffek (eds.), Mediation (2008) 671 – 725.


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involve national sports organizations (NSOs) and national-level athletes, Canadi-an doping violation disputes, and other disputes by agreement of the parties.

In this respect, there are many different bodies and institutions in the field of sports that integrate and enact mediation rules in their statutes and codes in dif-ferent ways. The codes of the international sports federations contain only isolat-ed rules regarding mediation, which are individually tailored to the needs and interests of the respective federation.108 The Sports Tribunal of New Zealand also has isolated rules in its code.109

With regard to the research question, the following study therefore primarily examines the regulations of CAS110, SDSI111, SDRCC112 and SRUK113 since, as far as can be seen, only in these codes are the mediation procedures completely regulated, which enables comparability in regard to the regulatory treatment of the principles.

__________ 108 Furthermore, the codes of the sports federations differ in the terms of their scope, the procedure, and the subject of the conflict. 109 Rule 31 of the Rules of the Sports Tribunal, available at http://www.sportstribunal.org.nz/assets/Uploads/Rules-sports-tribunal-2012.pdf / (last visited Aug. 08, 2018). 110 See Appendix I – CAS Mediation Rules. 111 See Appendix II – Sport Dispute Solutions Ireland Rules, the entire Code of the SDSI is available at: http://sportdisputesolutions.ie/sdsi-arbitration-mediation-rules/ (last visited Feb. 01, 2019). 112 See Appendix III – Canadian Sport Dispute Resolution Code, the entire Code of the SDRCC is available at: www.crdsc-sdrcc.ca/eng/dispute-resolution-code (last visited Aug. 08, 2018). 113 See Appendix IV – Sport Resolutions (UK) Mediation Procedure.

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3. Principles and Regulatory Treatment

The third Chapter deals with the principles and the regulatory treatment of these principles. First of all, the relationship between “principles” and “rules” is exam-ined; this is followed by a discussion of the research question, in particular the regulatory treatment of the aforementioned principles in the mediation regula-tions of CAS, SDSI, SDRCC and SRUK.

3.1. The Relationship between “Principles” and “Rules”

With regard to the raised research question, the relationship between “principles” and “rules” is explained. Without delving into the details of the legal theory dis-cussion of the distinction between “principles” and “rules”114, Dworkin finds the distinction between principles and rules in the character of the direction they give.115 From his perspective, rules are applicable in an “all-or-nothing” fash-ion.116 If the facts stipulated by a rule are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.117 Principles, however, contain a dimension that rules do not – the dimension of weight or importance.118 When principles intersect, the person resolving the conflict must consider the relative weight of each.119 In Dworkin’s view, this cannot be, of course, an exact measurement, and

__________ 114 Dworkin, Taking Rights Seriously (1978) 22 ff; Alexy, Formal principles: Some replies to critics, Internati-onal Journal of Constitutional Law, Vol. 12, Issue 3, 2014, 511 ff; Alexy, Theorie der Grundrechte (1986) 71 ff; Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (1956) 50 f.; Reßing, Prinzi-pien als Normen mit zwei Geltungsebenen: Zur Unterscheidung von Regeln und Prinzipien, ARSP, Vol. 95, No. 1, 2009, 28 ff; Penski, Rechtsgrundsätze und Rechtsregeln — Ihre Unterscheidung und das Problem der Positivität des Rechts, JZ 1989, 105 ff; Poscher, Theorie eines Phantoms – Die erfolglose Suche der Prinzipi-entheorie nach ihrem Gegenstand, RW 2010, 349 ff; Bydlinski F., Über prinzipiell-systematische Rechtsfin-dung im Privatrecht (1995) 11 ff; Heinold, Die Prinzipientheorie bei Ronald Dworkin und Robert Alexy (2011). 115 Dworkin, Taking Rights Seriously 24. 116 Dworkin, Taking Rights Seriously 24. 117 Dworkin, Taking Rights Seriously 24. 118 Dworkin, Taking Rights Seriously 26. 119 Dworkin, Taking Rights Seriously 26.


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the judgment that a particular principle or policy is more important than another will often be a controversial one.120

From the German point of view, Alexy has taken up and developed Dworkin's distinction between principles and rules into a comprehensive principles theory. The basis of his principles theory is the norm-theoretic distinction between rules and principles.121 Rules are norms that require something determinate; they are definitive commands and their form of application is subsumption.122 In this regard, rules as norms can only be either fulfilled or not fulfilled.123 By contrast, principles are optimization requirements.124 As such, they demand, “that some-thing be realized to the greatest extent possible given the legal and factual possi-bilities.”125 While rules are concretely formulated arrangements, principles are normative statements, guiding principles, and abstract valuations that underlie a concrete set of rules.126

With regard to the raised research question, the relationship between rules and principles as they relate to a code or regulatory system is considered as well. A set of rules consists of both rules and principles. Rules are often based on one or more principles. In this sense, principles can be contained explicitly and immedi-ately as well as implicitly and indirectly in a particular rule. Rules thus concretize one or more principles and thereby also serve in the observance and enforcement of principles. In addition, it is possible that a rule also contains several principles, from which can be derived a ranking of these principles within this particular rule. In order to answer the raised research question, it is therefore necessary to examine the regulatory treatment of the principles.

3.2. Selected Regulatory Areas

As previously mentioned, principles can be contained both explicitly and implic-itly in the rules of codes from the CAS, SDSI, SDRCC, and SRUK. In order to be

__________ 120 Dworkin, Taking Rights Seriously 26. 121 Alexy, International Journal of Constitutional Law, Vol. 12, Issue 3, 2014, 512. 122 Alexy, International Journal of Constitutional Law, Vol. 12, Issue 3, 2014, 512. 123 Alexy, Theorie der Grundrechte 76. 124 Alexy, International Journal of Constitutional Law, Vol. 12, Issue 3, 2014, 512. 125 Alexy, International Journal of Constitutional Law, Vol. 12, Issue 3, 2014, 512; Alexy, Theorie der Grundrechte 75f. 126 Nietner, Internationaler Entscheidungseinklang im europäischen Kollisionsrecht (2016) 15.

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able to assess the comparability between the rules of the different providers, the author forms certain regulatory areas. In this context, the principles contained in the respective regulatory areas are examined. Furthermore, the design of the selected regulatory areas from the aforementioned providers are compared and discussed. Finally, a comment is made that can refer both to the treated principles and the design of the rules in the respective codes. In addition, the similarities and differences between the rules of the providers are elaborated upon and own find-ings and suggestions are communicated as well.

For reasons of comparability, the following regulatory areas are formed in or-der to examine the regulatory treatment of the principles: definition of mediation, participation, dealing with representatives, selection and role of the mediator, dealing with the principle of multipartiality, dealing with the principle of confi-dentiality, dealing with the settlement and termination.

3.2.1. Definition of Mediation

First, it is examined whether the mediation definitions of the respective mediation rules of CAS, SDSI, SDRCC, and SRUK contain the five aforementioned princi-ples.

In this regard, it can be stated that all examined mediation regulations include a mediation definition.127

The principle of voluntariness and the principle of self-determination are not explicitly included in the four examined mediation definitions.

The principle of confidentiality is explicitly mentioned in the mediation defini-tion of SRUK.128 In the codes of the CAS129, SDSI130 and SDRCC131 the principle of confidentiality is explicitly mentioned elsewhere, but not in the definition.132

The principle of multipartiality is not explicitly included in the mediation defi-nitions from CAS, SDSI, SDRCC and SRUK. SDSI133 and SRUK134 mention the

__________ 127 Art. 1 CASMR; Rule 33.1 SDSIR; Art. 5.1 CSDRC; § 1.1 SRMP. 128 § 1.1 SRMP. 129 Art. 10 CASMR. 130 Rule 59. SDSIR. For reasons of clarity, the SDSI is recommended to change the name “JSI” to “SDSI” in Rule 59.2 SDSIR. 131 Art. 5.7 (a) CSDRC. 132 About the regulatory treatment of the principle of confidentiality, see 3.2.6.. 133 Rule 33.1 SDSIR. 134 § 1.1 SRMP.


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independence of the third party in their definitions. However, the third party, “the mediator,” is explicitly contained in the definitions of the CAS and the SDRCC and the mediators’ impartiality and/or independence is mentioned elsewhere by CAS and SDRCC. According to the CAS135, the mediator shall be and must re-main impartial and independent of the parties, and the SDRCC136 formulates that “upon their appointment to the relevant list, the Mediators, Arbitrators and Med/Arb Neutrals shall sign a declaration undertaking to exercise their functions personally with impartiality.” Although the principle of multipartiality is not explicitly included in the definitions for the mediation of the CAS and SDRCC, the term “mediator” at least implies indirectly the mediators' impartiality and/or independence.

No mediation definition of the four examined codes explicitly contains the principle of focusing on interests.137

In summary, no mediation definition of the four examined codes explicitly contains all of the five aforementioned principles. However, these principles should be understood as “normative statements, guiding principles and abstract valuations that underlie a concrete set of rules.”138 Therefore, it would be useful to include the principles explicitly in the definitions of the individual codes. This would emphasize their significance and importance in relation to the mediation procedure. As stated above139, a corresponding definition of mediation may be as follows: mediation is a confidential and structured procedure in which the parties voluntarily and self-determinately, with the support of a multipartial third party who is not allowed to propose solutions and has no decision-making power, strive for an amicable conflict resolution based on the parties’ needs and interests.

__________ 135 Art. 6 CASMR. 136 Art. 3.2 (c) CSDRC. 137 Only in the definition of the resolution facilitation of the SDRCC it is determined that the resolution facili-tator must focus on the interests of the parties, see Art. 4.1 (a) CSDRC; see 3.2.4.2.1.2.. 138 Nietner, Internationaler Entscheidungseinklang im europäischen Kollisionsrecht 15. 139 See 2.1..

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Tabl

e 1:

Def

initi

on o

f Med

iatio

n

Spor

t Res

olut

ions

(UK

)

§ 1.

1 SR

MP

1.1

Med

iatio

n is,

in g

ener

al

term

s, a

nego

tiatio

n as

siste

d by

an

inde

pend

ent t

hird

par

ty

(“th

e M

edia

tor”

). Th

e pr

o-ce

ss is

flex

ible

and

det

er-

min

ed b

y th

e M

edia

tor i

n co

nsul

tatio

n w

ith th

e Pa

rties

an

d no

rmal

ly c

ompr

ises

a

serie

s of c

onfid

entia

l joi

nt

and

priv

ate

mee

tings

. Exc

ept

as n

oted

in c

laus

e 11

all

com

mun

icat

ions

rela

ting

to,

and

at, t

he m

edia

tion

are

conf

iden

tial a

nd w

ithou

t pr

ejud

ice.

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

Art.

5.1

CSD

RC

5.1

(a) T

he te

rm “

Med

iatio

n”

used

in th

is C

ode

incl

udes

a

Med

iatio

n pr

oces

s and

the

Med

iatio

n po

rtion

of t

he

Med

/Arb

, and

the

term

“M

e-di

ator

” in

clud

es a

Med

/Arb

N

eutra

l act

ing

as a

Med

iato

r. (b

) Med

iatio

n un

der t

he

prov

ision

s of t

his A

rticl

e is

a no

n-bi

ndin

g an

d in

form

al

proc

edur

e, in

whi

ch e

ach

Party

und

erta

kes i

n go

od

faith

to n

egot

iate

with

all

othe

r Par

ties,

with

the

as-

sista

nce

of a

Med

iato

r, w

ith a

vi

ew to

settl

ing

a Sp

orts

-R

elat

ed D

isput

e.

Spor

t Dis

pute

So

lutio

ns Ir

elan

d

Rul

e 33

.1 S

DSI

R

33.1

SD

SI m

edia

tion

is a

flex

ible

pro

cess

in

whi

ch e

ach

party

to

a d

isput

e (th

e “P

arty

”) u

nder

take

s to

atte

mpt

to n

egot

ia-

te a

settl

emen

t in

good

faith

with

the

othe

r Par

ty, w

ith th

e as

sista

nce

of a

n in

depe

nden

t thi

rd

party

(the

“M

edia

-to

r”).

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

1 C

ASM

R

1. C

AS

med

iatio

n is

a no

n-bi

ndin

g an

d in

form

al p

roce

dure

, bas

ed o

n an

agr

eem

ent t

o m

edia

te in

whi

ch

each

par

ty u

nder

take

s to

atte

mpt

in

good

faith

to n

egot

iate

with

the

othe

r par

ty w

ith a

vie

w to

settl

ing

a sp

orts

-rela

ted

disp

ute.

The

par

ties

are

assis

ted

in th

eir n

egot

iatio

ns b

y a

CAS

med

iato

r. In

prin

cipl

e, C

AS

med

iatio

n is

pr

ovid

ed fo

r the

reso

lutio

n of

co

ntra

ctua

l disp

utes

. Dis

pute

s re

late

d to

disc

iplin

ary

mat

ters

, suc

h as

dop

ing

issue

s, m

atch

-fixi

ng a

nd

corru

ptio

n, a

re e

xclu

ded

from

CA

S m

edia

tion.

How

ever

, in

certa

in

case

s, w

here

the

circ

umst

ance

s so

requ

ire a

nd th

e pa

rties

exp

ress

ly

agre

e, d

ispu

tes r

elat

ed to

disc

iplin

a-ry

mat

ters

may

be

subm

itted

to

CAS

med

iatio

n.


29

3.2.2. Participation

Voluntary participation in a mediation is, as already mentioned,140 an expression of the principle of voluntariness. In this respect, the rules of participation in me-diation are discussed below and commented upon.

3.2.2.1. Regulatory Treatment CAS141, SDSI142, SDRCC143, and SRUK144 require a mediation agreement be-tween the parties. The mediation agreement can be based on different factors.

According to the CAS,145 a mediation agreement may take the form of a medi-ation clause in a contract or may be a separate agreement.

The rule of the SDSI146 states that the agreement may take the form of a clause inserted into a contract; a mediation clause contained in the statutes or regulations of a sports-related body; or a separate mediation agreement, the entry into which can be facilitated by SDSI if required.

According to the rules of the SDRCC147, its code is applied to any sports-related dispute: “(i) in relation to which a Mediation, Arbitration or Med/Arb agreement exists between the Parties to bring the dispute to the SDRCC; (ii) that the Parties are required to resolve through the SDRCC; or (iii) that the Parties and the SDRCC agree to have resolved using this Code.”

SRUK148 has only determined that the parties, the mediator, and SRUK will enter into an agreement based on SRUK’s Mediation Agreement (“the Mediation Agreement”).

__________ 140 See 2.2.1.. 141 Art. 2 CASMR. 142 Rule 35.1 and Rule 39.1 SDSIR. For reasons of clarity, the SDSI is recommended to change the name “JSI” to “SDSI” in Rule 39 SDSIR. 143 Art. 5.2 CSDRC. 144 § 2.1 SRMP. 145 Art. 2 CASMR. 146 Rule 35.1 SDSIR. 147 Art 2.1 (b) CSDRC. 148 § 2.1 SRMP.

Marcel Woitalla

30

Tabl

e 2:

Par

ticip

atio

n

Spor

t Res

olut

ions

(U

K)

§ 2.

1 SR

MP

2.1

The

Parti

es, t

he M

edia

tor

and

Spor

t Res

olut

ions

(UK

) w

ill e

nter

into

an

agre

emen

t ba

sed

on S

port

Reso

lutio

ns

(UK

) Med

iatio

n A

gree

men

t (“

the

Med

iatio

n A

gree

-m

ent”

).

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

Art

2.1

CSD

RC ;

Art.

5.2

CSD

RC

2.1

(a) T

he S

DRC

C ad

min

ister

s thi

s Cod

e to

re

solv

e Sp

orts-

Rela

ted

Disp

utes

. (b

) Sub

ject

to S

ubse

ctio

n 2.

1(c)

her

eof,

this

Code

app

lies t

o a

Spor

ts-Re

late

d D

isput

e w

here

th

e SD

RCC

has j

urisd

ictio

n to

reso

lve

the

disp

ute.

Thi

s Cod

e w

ill th

eref

ore

appl

y to

any

Sp

orts-

Rela

ted

Disp

ute:

(i)

in re

latio

n to

whi

ch a

Med

iatio

n, A

rbitr

atio

n or

Med

/Arb

agr

eem

ent e

xists

bet

wee

n th

e Pa

rties

to b

ring

the

disp

ute

to th

e SD

RCC;

(ii

) tha

t the

Par

ties a

re re

quire

d to

reso

lve

thro

ugh

the

SDRC

C; o

r (ii

i) th

at th

e Pa

rties

and

the

SDRC

C ag

ree

to

have

reso

lved

usin

g th

is Co

de.

(c) T

his C

ode

shal

l not

app

ly to

any

disp

ute

that

a

Pane

l det

erm

ines

, in

its d

iscre

tion,

is n

ot

appr

opria

te to

brin

g be

fore

the

SDRC

C or

to a

di

sput

e w

here

the

Pane

l det

erm

ines

that

the

SDRC

C do

es n

ot h

ave

juris

dict

ion

to d

eal w

ith

the

disp

ute.

5.

2 W

here

an

agre

emen

t pro

vide

s for

Med

iatio

n un

der t

his C

ode,

the

rule

s set

forth

in th

is A

rticl

e sh

all b

e de

emed

to fo

rm a

n in

tegr

al p

art

of su

ch M

edia

tion

agre

emen

t. U

nles

s the

Par

ties

agre

e ot

herw

ise, t

he v

ersio

n of

thes

e M

edia

tion

rule

s in

forc

e on

the

date

whe

n th

e Re

ques

t is

filed

shal

l app

ly. T

he P

artie

s may

, how

ever

, ag

ree

to a

pply

oth

er ru

les o

f pro

cedu

re. T

he

Parti

es sh

all s

ign

a M

edia

tion

agre

emen

t, th

e fo

rm o

f whi

ch w

ill b

e pr

ovid

ed b

y th

e SD

RCC

unle

ss th

ey h

ave

agre

ed to

a d

iffer

ent f

orm

of

agre

emen

t.

Spor

t Dis

pute

Sol

utio

ns Ir

elan

d

Rul

e 35

.1 S

DSI

R ;

Rul

e 39

.1 S

DSI

R

35.1

In o

rder

to in

itiat

e m

edia

tion

with

SD

SI m

edia

tion

ther

e m

ust b

e an

agr

eem

ent b

etw

een

the

Parti

es to

subm

it to

m

edia

tion

a sp

orts-

rela

ted

disp

ute.

Thi

s agr

eem

ent m

ay ta

ke

the

form

of:

(i) A

cla

use

inse

rted

into

a c

ontra

ct,

(ii) A

med

iatio

n cl

ause

con

tain

ed in

the

statu

tes o

r reg

ulat

ions

of

a sp

orts-

rela

ted

body

, or

(iii)

A se

para

te m

edia

tion

agre

emen

t the

ent

ry in

to w

hich

can

be

faci

litat

ed b

y SD

SI if

requ

ired.

39

.1 T

he P

artie

s, th

e M

edia

tor a

nd JS

I wish

ing

to p

roce

ed

with

JSI M

edia

tion

will

ent

er in

to a

n ag

reem

ent b

ased

on

the

JSI S

tand

ard

“Med

iatio

n A

gree

men

t”, a

s am

ende

d fr

om ti

me

to ti

me,

whi

ch se

ts ou

t how

the

med

iatio

n w

ill b

e co

nduc

ted

incl

udin

g bu

t not

lim

ited

to th

e fo

llow

ing:

(a

) the

term

s and

tim

etab

le fo

r eac

h Pa

rty to

subm

it sim

ulta

ne-

ously

(thr

ough

the

Secr

etar

iat),

to th

e M

edia

tor a

nd to

the

othe

r Par

ty;

(i) A

stat

emen

t sum

mar

ising

its c

ase

in th

e D

isput

e, (c

olle

c-tiv

ely

refe

rred

to a

s the

“Ca

se S

umm

ary”

); an

d (ii

) Cop

ies o

f all

docu

men

ts to

whi

ch it

refe

rs in

the

Sum

mar

y an

d to

whi

ch it

may

wan

t to

refe

r to

in th

e m

edia

tion

(the

“Doc

umen

ts”).

Prov

ided

alw

ays t

hat a

ny P

arty

may

subm

it fu

rther

doc

umen

-ta

tion

to th

e M

edia

tor (

thro

ugh

the

Secr

etar

iat),

whi

ch it

w

ishes

to d

isclo

se in

con

fiden

ce to

the

Med

iato

r but

not

to a

ny

othe

r Par

ty, c

lear

ly st

atin

g in

writ

ing

that

such

doc

umen

tatio

n is

conf

iden

tial t

o th

e M

edia

tor a

nd to

the

Secr

etar

iat;

(b) t

he m

axim

um n

umbe

r of p

ages

of e

ach

Sum

mar

y;

(c) t

he P

artie

s ava

ilabi

lity

to a

ttend

at M

edia

tion;

and

(d

) the

pre

ferre

d lo

catio

n of

the

Med

iatio

n.

The

SDSI

Sta

ndar

d M

edia

tion

Agr

eem

ent i

s ava

ilabl

e fo

r do

wnl

oad

from

the

SDSI

web

site

or c

an b

e ob

tain

ed fr

om th

e SD

SI S

ecre

taria

t on

requ

est.

Cou

rt o

f Arb

itra-

tion

for

Spor

t

Art.

2 C

ASM

R

2. A

med

iatio

n ag

reem

ent i

s on

e w

here

by th

e pa

rties

ag

ree

to su

bmit

to m

edia

tion

a sp

orts-

rela

ted

disp

ute

whi

ch h

as a

risen

or w

hich

m

ay a

rise

betw

een

them

. A

med

iatio

n ag

reem

ent m

ay

take

the

form

of a

med

iatio

n cl

ause

in a

con

tract

or a

se

para

te a

gree

men

t.


31

3.2.2.2. Comment In order to guarantee applicability of the rules of the respective code, a mediation agreement between the conflict parties is required. In this respect, it is not sur-prising that all providers have also established rules about a conclusion for such a “mediation agreement.” The rules in their codes differ in details. The providers have described in their codes several ways in which the parties can submit to their rules.149 However, in concluding such a mediation agreement, regardless of the form, the parties commit themselves to conducting a mediation procedure at the respective provider. In this respect, the principle of voluntariness is affected by the conclusion of a mediation agreement. This obligation immediately raises the question of whether the affirmation of a corresponding commitment to mediation and the associated submission to a particular set of rules constitutes a contradic-tion of the principle of voluntariness.

However, it should be borne in mind that the parties’ decision to conclude a mediation agreement is based in principle on their voluntary decision.150 The obligation to participate at the mediation procedure therefore results solely from their free decision to contract.151 The conclusion of a mediation agreement that is based on a consciously free parties’ decision can therefore be regarded as an expression of the principle of voluntariness.

Furthermore, it is also provided in some of the codes that the applicability of the rules of the respective code may also result from the statutes or regulations of a sports-related body.152 Although the statutes or regulations of the sports-related bodies are not intended to be the measure of this investigation, it should be noted that a clause which compulsively orders a mediation (“mandatory mediation”153)

__________ 149 For the mediation clauses in general terms and conditions from the German point of view, see Tochter-mann, Mediationsklauseln – Teil I, ZKM 2008, 57 ff; Tochtermann, Mediationsklauseln – Teil II, ZKM 2008, 89 ff. 150 Cf. Tochtermann, ZKM 2008, 90; Hagel in Klowait/Gläßer, Handkommentar-MediationsG2 § 1 m.n. 14. 151 Tochtermann, ZKM 2008, 90; Hagel in Klowait/Gläßer, Handkommentar-MediationsG2 § 1 m.n. 14. 152 The IHUK has provided such a rule in its code: “Members, affiliates, associates, participants, Clubs, Teams, Persons and IHUK agree that any other disputes between them that are not covered by the Rules, Regulations and By-Laws shall be referred to Sports Resolutions for resolution by mediation in accordance with Sports Resolutions (UK’s) Meditation Procedure, which procedure is deemed to be incorporated by reference to this clause.”, Rule 16 (1) ICE HOCKEY UK Disciplinary & Appeals Rules & Procedures. 153 The SDRCC requires disputing parties to participate in the resolution facilitation process for at least three hours as a mandatory step before arbitration, see Art. 4.3 (b) CSDRC. For more information about mandatory mediation, see Mironi, The International Sports Law Journal 2017, 148 ff; Hanks, Perspectives on mandatory mediation, University of New South Wales Law Journal, Vol. 35, No. 3, 2012, 929 ff.

Marcel Woitalla

32

limits the principle of voluntariness.154 In these cases, particular attention should be paid to the fact that the respective code explicitly states, at a minimum, the right to terminate the mediation procedure at any time, which also considers an expression of the principle of voluntariness.

3.2.3. Dealing with Representatives

Mediations are not always conducted solely by the affected parties, but also by their representatives.155 The parties’ decision to engage a representative can be understood as an expression of their self-determination. In this respect, the regu-latory treatment of representatives in the selected sets of rules is discussed and commented upon.

3.2.3.1. Regulatory Treatment According to their regulations, all providers allow their parties to use representa-tives.156

The appointment of a representative is explicitly included in the codes of CAS157, SDSI158, and SDRCC159. SRUK160 has established that the representa-tives of the parties must have the necessary authority to settle the dispute. This rule implies that appointments of representatives must be allowed as well.

Furthermore, CAS161, SDRCC162, and SRUK163 have explicitly mentioned that the representative must have the “authority to settle the dispute.” By contrast, the SDSI appears to have made no rule about the “authority to settle the dispute;” it has, however, enacted that the parties may be represented at a hearing by a third party, but should appear personally where requested to do so.164

__________ 154 The degree of voluntariness also varies with regard to participation in a mediation procedure in different legal orders, see Wendenburg in Haft/Schlieffen, Handbuch Mediation3 § 58 m.n. 12. 155 Cf. Montada/Kals, Mediation3 250. 156 Art. 7 CASMR; Rule 58.1 SDSIR; § 1.2 SRMP; Art. 3.11 and Art. 5.5 CSDRC. 157 Art. 7 CASMR. 158 Rule 58.1 SDSIR. 159 Art. 3.11 (a) CSDRC. 160 § 1.2 SRMP. 161 Art. 7 CASMR. 162 Art. 5.5 CSDRC. 163 § 1.2 SRMP. 164 Rule 58.3 SDSIR.


33

CAS165, SDSI166, SDRCC167, and SRUK168 have established a rule that in the case of representation, other participants shall or must be informed by the repre-sented party about the representation.

A special feature is contained in the code of the SDRCC169 in which the han-dling of minors is explicitly determined.

__________ 165 Art. 7 CASMR. 166 Rule 58.2 SDSIR. 167 Art. 3.11 (a) CSDRC. 168 § 5.1 SRMP. 169 3.11 (b) CSDRC.

Marcel Woitalla

34

Tabl

e 3:

Dea

ling

with

Rep

rese

ntat

ives

Spor

t Res

olut

ions

(UK

)

§ 1.

2 SR

MP

; § 5

.1 S

RMP

1.2

The

repr

esen

tativ

es o

f the

Par

ties

mus

t hav

e th

e ne

cess

ary

auth

ority

to

settl

e th

e di

sput

e.

5.1

Each

Par

ty w

ill n

otify

the

othe

r Pa

rty o

r Par

ties,

thro

ugh

Spor

t R

esol

utio

ns (U

K),

of th

e na

mes

of

thos

e pe

ople

that

it in

tend

s will

be

pres

ent o

n its

beh

alf a

t the

med

iati-

on.

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of

Can

ada

Art.

3.1

1 C

SDR

C; A

rt. 5

.5 C

SDRC

3.11

(a) T

he P

artie

s hav

e a

right

to c

ouns

el a

t all

SDR

CC

pro

ceed

ings

and

may

be

repr

esen

ted

or

assi

sted

by

Pers

ons o

f the

ir ch

oice

at t

heir

own

expe

nse.

The

nam

es, a

ddre

sses

, tel

epho

ne a

nd

facs

imile

num

bers

, and

em

ail a

ddre

sses

of t

he

repr

esen

tativ

es o

f the

Par

ties s

hall

be c

omm

unic

a-te

d to

all

othe

r Par

ties a

nd to

the

SDR

CC

. (b

) Min

ors i

nvol

ved

in S

DR

CC

pro

ceed

ings

shal

l be

repr

esen

ted

by a

par

ent o

r by

a le

gal g

uard

ian.

Su

bjec

t to

Subs

ectio

n 3.

11(a

) her

eof,

the

pare

nt o

r le

gal g

uard

ian

may

aut

horiz

e an

othe

r adu

lt to

re

pres

ent o

r spe

ak o

n be

half

of th

e M

inor

. 5.

5 Th

e Pe

rson

s pre

sent

at t

he M

edia

tion

mus

t ha

ve fu

ll au

thor

ity to

settl

e th

e Sp

orts

-Rel

ated

D

ispu

te w

ithou

t con

sulti

ng a

nyon

e w

ho is

not

pr

esen

t.

Spor

t Dis

pute

So

lutio

ns Ir

elan

d

Rul

e 58

SD

SIR

58.1

The

Par

ties m

ay b

e re

pres

ente

d or

ass

iste

d by

pe

rson

s of t

heir

choi

ce.

58.2

If a

Par

ty is

bei

ng

repr

esen

ted,

it sh

all i

nfor

m

SDSI

and

the

othe

r Par

ty o

f th

e id

entit

y of

such

repr

esen

-ta

tive

at th

e ea

rlies

t opp

ortu

ni-

ty.

58.3

Par

ties m

ay b

e re

-pr

esen

ted

at a

hea

ring

by a

th

ird p

arty

, but

shou

ld a

ppea

r pe

rson

ally

whe

re re

ques

ted

to

do so

.

Cou

rt o

f Arb

itra-

tion

for

Spor

t

Art.

7 C

ASM

R

7. T

he p

artie

s may

be

repr

esen

ted

or a

ssis

ted

in

thei

r mee

tings

with

the

med

iato

r. If

a pa

rty is

bei

ng re

-pr

esen

ted,

the

othe

r par

ty,

the

med

iato

r and

the

CA

S m

ust b

e in

form

ed b

efor

e-ha

nd a

s to

the

iden

tity

of

such

repr

esen

tativ

e.

The

repr

esen

tativ

e m

ust

have

full

writ

ten

auth

ority

to

settl

e th

e di

sput

e al

one,

w

ithou

t nee

ding

to

cons

ult t

he p

arty

she/

he is

re

pres

entin

g.


35

3.2.3.2. Comment All providers give the parties the opportunity to use a representative during the mediation procedure. These examined rules can be understood as concretization and expression of the principle of self-determination.

Nevertheless, the rules in dealing with representatives differ with regard to the details of the concrete design.

That the representative must have the “authority to settle the dispute” is of substantial importance. As previously mentioned, the SDSI170 has not explicitly regulated that the representative must have the authority to settle the dispute. In this regard, a lack of authority to settle the dispute can lead to a representative being given the opportunity to consult the represented person again, which could bring new negotiating material with itself in the mediation or could also be more time consuming for all participants. Furthermore, the lack of authority to settle can also lead to an “inequality of arms” between the parties. A representative can invoke on the fact that he has no authority to settle the dispute and that he has to ask the represented person. In fact the represented person would have the power of veto in this case. In comparison, a party that does not appoint a representative would have to explicitly state that he also wants the power of veto in order to restore the “equality of arms.”171 A rule that determines the “authority to settle the dispute” can therefore lead to clarity and transparency of the mediation pro-cedure. By adopting a rule determining the authority to settle the dispute, howev-er, the problems and ambiguities that may arise in the event of a representative’s lack of authority to settle the dispute can be avoided. Therefore, the SDSI is advised to explicitly insert a rule in its code that determines that a representative must have the authority to settle the dispute.

3.2.4. Selection and Role of the Mediator

In the following, the regulatory areas of the selection and the role of the mediator are discussed in detail.

__________ 170 Rule 58.3 SDSIR. 171 About the problems with representatives in a mediation, see Montada/Kals, Mediation3 250.

Marcel Woitalla

36

3.2.4.1. Selection of the Mediator The free selection of the mediator can be seen as an expression of the principle of self-determination of the parties. In the following, the regulatory treatment of the selection of a mediator is examined and commented upon.

3.2.4.1.1. Regulatory Treatment In the Mediation Regulations of the CAS172, SDSI173, SDRCC174, and SRUK175 it is provided that the parties are allowed to select the mediator.

If the parties cannot agree on a mediator, CAS176, SDSI177, and SRUK178 have established the rule that a third party (of its respective institution) must appoint the mediator. In contrast to CAS and SRUK, the SDSI179 has set down in its regulations that it shall seek to appoint a mediator within seven days of an agree-ment to mediate being established between the parties. The SDRCC180 has deter-mined that it will provide the parties with a list of three mediators selected on a rotational basis if they do not agree on a mediator. The parties shall choose a mediator from this provided list. If the parties do not agree on a mediator within the time limit set by the SDRCC, the institution shall appoint the mediator on a rotational basis.

Moreover, it is provided in the rules of SDSI181 and SRUK182 that an assistant mediator may accompany the mediator. According to their rules, the assistant is present in order to gain experience and to assist the mediator as appropriate. The addition of an assistant mediator is without costs to the parties. All references to mediator in the procedures of SDSI and SRUK also apply to the assistant media-tor.183

CAS and SDRCC appear not to have made any provisions regarding assistant mediators.

__________ 172 Art. 6 CASMR. 173 Rule 36.1 SDSIR. 174 Art. 5.4 CSDRC. 175 § 3.1 SRMP. 176 Art. 6 CASMR. 177 Rule 36.1 SDSIR. 178 § 3.1 SRMP. 179 Rule 36.2 SDSIR. 180 Art 5.4 CSDRC. 181 Rule 36.3 SDSIR. 182 § 3.7 SRMP. 183 Rule 36.3 SDSIR; § 3.7 SRMP.


37

Tabl

e 4:

Sel

ectio

n of

the

Med

iato

r

Spor

t Res

olut

ions

(U

K)

§ 3.

1 SR

MP

; § 3

.7 S

RM

P

3.1

The

Parti

es w

ill a

gree

a

Med

iato

r fro

m th

e lis

t of

med

iato

rs p

rovi

ded

by S

port

Res

olut

ions

(UK

). If

they

ca

nnot

agr

ee a

s to

who

shou

ld

be a

ppoi

nted

, the

Med

iato

r sh

all b

e ap

poin

ted

by th

e Ex

ecut

ive

Dire

ctor

of S

port

Res

olut

ions

(UK

). 3.

7 A

n A

ssis

tant

Med

iato

r m

ay a

ccom

pany

the

Med

iato

r. Th

e A

ssis

tant

is p

rese

nt to

ga

in e

xper

ienc

e an

d as

sist

the

Med

iato

r as a

ppro

pria

te a

nd

atte

nds w

ithou

t cos

t to

the

Parti

es. A

ll re

fere

nces

to

‘Med

iato

r’ in

this

Pro

cedu

re

also

app

ly to

the

Ass

ista

nt

Med

iato

r.

Spor

t Dis

pute

Res

olu-

tion

Cen

tre

of C

anad

a

Art.

5.4

CSD

RC

5.4

Unl

ess t

he P

artie

s hav

e ag

reed

bet

wee

n th

emse

lves

on

a M

edia

tor,

the

SDR

CC

will

pr

ovid

e th

em a

list

of t

hree

(3)

Med

iato

rs se

lect

ed o

n a

rota

tiona

l bas

is. T

he P

artie

s sh

all c

hoos

e a

Med

iato

r fro

m

the

list p

rovi

ded.

If th

e Pa

rties

do

not

agr

ee o

n a

Med

iato

r w

ithin

the

time

limit

set b

y th

e SD

RC

C, t

he S

DR

CC

shal

l ap

poin

t the

Med

iato

r on

a ro

tatio

nal b

asis

.

Spor

t Dis

pute

So

lutio

ns Ir

elan

d

Rul

e 36

SD

SIR

36.1

The

Par

ties w

ill a

gree

a

Med

iato

r fro

m th

e Li

st o

f Med

iato

rs

mai

ntai

ned

by S

DSI

. If t

hey

cann

ot

agre

e as

to w

ho sh

ould

be

ap-

poin

ted,

the

Med

iato

r sha

ll be

ap

poin

ted

by th

e Se

cret

aria

t. 36

.2 S

DSI

shal

l see

k to

app

oint

a

Med

iato

r with

in se

ven

(7) d

ays o

f an

agr

eem

ent t

o m

edia

te b

eing

es

tabl

ishe

d be

twee

n th

e Pa

rties

. 36

.3 A

n as

sist

ant M

edia

tor m

ay

acco

mpa

ny th

e M

edia

tor.

The

Ass

ista

nt is

pre

sent

to g

ain

expe

ri-en

ce a

nd a

ssist

the

Med

iato

r as

appr

opria

te a

nd a

ttend

s with

out c

ost

to th

e Pa

rties

. All

refe

renc

es to

M

edia

tor i

n th

ese

Rul

es a

lso

appl

y to

the

Ass

ista

nt M

edia

tor.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

6 C

ASM

R

6. U

nles

s the

par

ties h

ave

join

tly se

lect

ed a

m

edia

tor f

rom

the

list o

f CA

S m

edia

tors

, the

m

edia

tor s

hall

be a

ppoi

nted

by

the

CA

S Pr

esid

ent,

afte

r con

sulta

tion

with

the

parti

es,

from

am

ong

the

list o

f CA

S m

edia

tors

. In

acc

eptin

g su

ch a

ppoi

ntm

ent,

the

med

iato

r un

derta

kes t

o de

vote

suffi

cien

t tim

e to

the

med

iatio

n pr

ocee

ding

s to

perm

it th

em to

be

cond

ucte

d ex

pedi

tious

ly.

The

med

iato

r sha

ll be

and

mus

t rem

ain

impa

rtial

, and

inde

pend

ent o

f the

par

ties,

and

shal

l dis

clos

e an

y fa

cts o

r circ

umst

ance

s w

hich

mig

ht b

e of

such

nat

ure

as to

cal

l int

o qu

estio

n he

r/his

inde

pend

ence

in th

e ey

es o

f an

y of

the

parti

es. N

otw

ithst

andi

ng a

ny su

ch

disc

losu

re, t

he p

artie

s may

agr

ee in

writ

ing

to

auth

oriz

e th

e m

edia

tor t

o co

ntin

ue h

is m

anda

-te

. In

the

even

t of a

n ob

ject

ion

by a

ny o

f the

pa

rties

, or a

t her

/his

ow

n di

scre

tion

if sh

e/he

de

ems h

erse

lf/hi

mse

lf un

able

to b

ring

the

med

iatio

n to

a su

cces

sful

con

clus

ion,

the

med

iato

r sha

ll ce

ase

her/h

is m

anda

te a

nd

info

rm th

e C

AS

Pres

iden

t acc

ordi

ngly

, w

here

upon

the

latte

r will

mak

e ar

rang

emen

ts

to re

plac

e he

r/him

, afte

r con

sulti

ng th

e pa

rties

an

d of

ferin

g th

em th

e po

ssib

ility

to a

ppoi

nt

anot

her C

AS

med

iato

r.

Marcel Woitalla

38

3.2.4.1.2. Comment All providers enable the parties the freedom to select a mediator based on an agreement of the parties. This can be seen as an expression of the principle of self-determination.184

The design of the rules in the examined codes differs, however. In comparison to the other three institutions, the SDRCC allows the parties to

agree on a mediator for a second time by providing them a list of three selected mediators. This can be seen as a further expression of the principle of self-determination.

However, the appointment of the mediator by a third person or the institution may be seen as contradicting the principle of self-determination. If the parties do not agree on a mediator, the question arises as to which alternatives, from the institutional point of view, exist in order to express the principle of self-determination to the greatest possible extent. From the institutional point of view, the alternatives are that no mediation takes place, the selection is made by one of the parties, or a negotiation or (mini) mediation about the selection of the media-tor is to be arranged by the respective institution. The choice of “no mediation” would not help to solve the conflict. The appointment of a mediator by one of the parties infringes the self-determination of the other party, and a negotiation or (mini) mediation can be time-consuming, with the added risk that the parties will be unable to agree on the selection of a mediator. Therefore, the appointment by a third person or the respective institution is the best solution in order to appoint a mediator, if the parties do not agree on a mediator.

With regard to the use of an assistant mediator185, it would be advisable to ex-plicitly supplement the codes in such a way that the parties are free to refuse an assistant mediator if they wish. Even if the assistant mediator supports the media-tor, the parties, and the mediation procedure, such a rule would be advisable in order to strengthen the self-determination of the parties.

__________ 184 By contrast, the resolution facilitator is appointed by the SDRCC, see Art. 4.1 (a) CSDRC. This can be seen as an infringement of the parties’ self-determination. Swim England has established a rule that the mediator is appointed by “the Commissioner”, but the parties shall within seven days of receipt of this notification be entitled to lodge with the Office of Judicial Administration objections against the mediator stating the grounds for the objection, see Rule 174.2 f of Swim England Handbook. 185 Rule 36.3 SDSIR; § 3.7 SRMP.


39

3.2.4.2. Role of the Mediator In order to be able to compare the individual rules in the different codes, the following areas of regulation regarding the role of the mediator are examined: the conduct of the procedure and the mediator’s influence on conflict solution.

3.2.4.2.1. Conduct of the Procedure While the parties have control over the content of the mediation, the mediator, as already mentioned, exercises procedural control.186 With respect to the conduct of the procedure, the principle of procedural control by the mediator has priority over the principle of the parties’ self-determination. Furthermore, mediation can also be delineated from a “normal” negotiation via the principle of procedural control. The principle of interest orientation also concerns the conduct of the procedure because, according to the underlying mediation understanding, the clarification of the parties’ interests is the pivotal step of the mediation proce-dure.187

In the following, the regulatory treatment of the conduct of the procedure is examined and commented upon.

3.2.4.2.1.1. Regulatory Treatment According to the rules of the CAS188 and the SDRCC189, mediation shall be con-ducted in the manner agreed upon by the parties. Unless the parties have agreed to conduct the mediation in a particular manner, the mediator shall determine how the mediation will proceed.190 The SDSI191 provides that the mediator will determine the procedure. According to the rules of SRUK192, the mediator “in consultation with the Parties” determines the process.

Regarding the content-related procedure and the mediator's approach, SDSI193, SDRCC194, and SRUK195 do not specify any further or special requirements in their codes.

__________ 186 See 2.2.2.. 187 See 2.2.5.1.3.. 188 Art. 8 CASMR. 189 Art. 5.6 CSDRC. 190 Art. 8 CASMR; Art. 5.6 CSDRC. 191 Rule 37.1 (iii) SDSIR. 192 § 1.1 SRMP. 193 Rule 37.1 (iii) SDSIR. 194 Art. 5.6 (a) CSDRC.

Marcel Woitalla

40

The CAS196 mentions, “The mediator shall promote the settlement of the is-sues in dispute in any manner that she/he believes to be appropriate.” In accord-ance with Art. 9 CASMR, the mediator will identify the issues in the dispute, facilitate discussion of the issues by the parties, and propose solutions197. Fur-thermore, the possibility of conducting a one-on-one interview is explicitly per-mitted by the CAS.198

195 § 3.2 (c) and § 1.1 SRMP. 196 Art. 9 CASMR. 197 About the Mediator’s Influence on Conflict Solution, see 3.2.4.2.2.. 198 Art. 8 CASMR.


41

Tabl

e 5:

Con

duct

of t

he P

roce

dure

Spor

t Res

olut

ions

(U

K)

§ 1.

1 SR

MP

; § 3

.2 S

RM

P

1.1

Med

iatio

n is,

in g

ener

al te

rms,

a ne

gotia

tion

assis

ted

by a

n in

depe

n-de

nt th

ird p

arty

(“th

e M

edia

tor”

). Th

e pr

oces

s is f

lexi

ble

and

dete

rmin

ed b

y th

e M

edia

tor i

n co

nsul

tatio

n w

ith th

e Pa

rties

and

no

rmal

ly c

ompr

ises a

serie

s of

conf

iden

tial j

oint

and

priv

ate

mee

tings

. Exc

ept a

s not

ed in

cla

use

11 a

ll co

mm

unic

atio

ns re

latin

g to

, an

d at

, the

med

iatio

n ar

e co

nfid

en-

tial a

nd w

ithou

t pre

judi

ce.

3.2

The

Med

iato

r will

: (a

) atte

nd a

ny m

eetin

gs w

ith a

ny o

r al

l of t

he p

artie

s pre

cedi

ng th

e m

edia

tion,

if re

ques

ted

or if

the

med

iato

r dec

ides

this

is ap

prop

ria-

te;

(b) r

ead

befo

re th

e m

edia

tion

each

Su

mm

ary

and

all t

he D

ocum

ents

sent

to h

im/h

er in

acc

orda

nce

with

pa

ragr

aphs

6.1

and

6.2

bel

ow;

(c) d

eter

min

e th

e pr

oced

ure

(see

pa

ragr

aph

1.1

abov

e);

(d) a

ssist

the

Parti

es in

dra

win

g up

an

y w

ritte

n se

ttlem

ent a

gree

men

t; (e

) abi

de b

y th

e te

rms o

f the

M

edia

tion

Proc

edur

e, th

e M

edia

ti-on

Agr

eem

ent a

nd a

ny C

ode

of

Cond

uct a

dopt

ed fr

om ti

me

to ti

me

(“th

e Co

de o

f Con

duct

).

Spor

t Dis

pute

Res

olu-

tion

Cen

tre

of C

anad

a

Art.

5.6

CSD

RC

5.6

(a) T

he M

edia

tion

shal

l be

cond

ucte

d in

the

man

ner a

gree

d by

th

e Pa

rties

. Fai

ling

such

agr

eem

ent

betw

een

the

Parti

es, t

he M

edia

tor

shal

l det

erm

ine

the

man

ner i

n w

hich

th

e M

edia

tion

will

be

cond

ucte

d.

(b) E

ach

Party

shal

l coo

pera

te in

go

od fa

ith w

ith th

e M

edia

tor.

(c) T

he M

edia

tor s

hall

devo

te

suff

icie

nt ti

me

to th

e M

edia

tion

proc

eedi

ngs t

o al

low

it to

be

cond

ucte

d ex

pedi

tious

ly.

Spor

t Dis

pute

Sol

utio

ns

Irel

and

Rul

e 37

.1 S

DSI

R

37.1

By

acce

ptin

g hi

s/her

app

oint

-m

ent,

the

Med

iato

r und

erta

kes t

o de

vote

suff

icie

nt ti

me

to th

e m

edia

ti-on

pro

cess

as w

ill a

llow

it to

be

cond

ucte

d ex

pedi

tious

ly a

nd w

ill:

(i) A

ttend

any

mee

tings

with

any

or

all o

f the

par

ties p

rece

ding

the

med

iatio

n, if

requ

este

d or

if th

e m

edia

tor d

ecid

es th

is is

appr

opria

te;

(ii) R

ead

befo

re th

e m

edia

tion

each

Ca

se S

umm

ary

and

all t

he D

ocum

ents

sent

to h

im/o

r her

in a

ccor

danc

e w

ith

thes

e ru

les.

(iii)

Det

erm

ine

the

proc

edur

e;

(iv) A

ssist

the

Parti

es in

dra

win

g up

an

y w

ritte

n se

ttlem

ent a

gree

men

t if

requ

ired;

(v

) Abi

de b

y th

e te

rms o

f the

M

edia

tion

Proc

edur

e, th

e M

edia

tion

Agr

eem

ent a

nd th

e SD

SI C

ode

of

Cond

uct f

or A

rbitr

ator

’s a

nd M

edia

-to

rs a

s may

be

amen

ded

from

tim

e to

tim

e.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

8 C

ASM

R ;

Art.

9 C

ASM

R

8. U

nles

s the

par

ties h

ave

agre

ed to

con

duct

the

med

iatio

n in

a

parti

cula

r man

ner,

the

med

iato

r sha

ll de

term

ine

how

the

med

iatio

n w

ill p

roce

ed, a

fter c

onsu

ltatio

n w

ith th

e pa

rties

an

d ta

king

due

con

sider

atio

n of

the

CAS

Med

iatio

n G

uide

lines

. U

pon

her/h

is ap

poin

tmen

t, th

e m

edia

tor s

hall

esta

blish

the

term

s and

tim

etab

le fo

r sub

miss

ion

by e

ach

party

of a

sta

tem

ent s

umm

ariz

ing

the

disp

ute,

incl

udin

g th

e fo

llow

ing

deta

ils:

'- a

brie

f des

crip

tion

of th

e fa

cts a

nd p

oint

s of l

aw, i

nclu

ding

a

list o

f the

issu

es su

bmitt

ed to

the

med

iato

r with

a v

iew

to

reso

lutio

n;

'- a

copy

of t

he m

edia

tion

agre

emen

t. W

here

the

parti

es a

gree

to su

bmit

an o

rdin

ary

/ app

eal

arbi

tratio

n ca

se to

med

iatio

n, th

e m

edia

tor m

ay c

onsid

er th

e re

ques

t for

arb

itrat

ion

/ sta

tem

ent o

f app

eal a

s one

par

ty’s

su

mm

ary

of it

s disp

ute

and

may

invi

te o

nly

the

othe

r par

ty

to su

bmit

its su

mm

ary

of th

e di

sput

e.

Each

par

ty sh

all c

oope

rate

in g

ood

faith

with

the

med

iato

r an

d sh

all g

uara

ntee

her

/him

the

freed

om to

per

form

her

/his

man

date

to a

dvan

ce th

e m

edia

tion

as e

xped

itiou

sly a

s po

ssib

le. T

he m

edia

tor m

ay m

ake

any

sugg

estio

ns sh

e/he

de

ems a

ppro

pria

te in

this

rega

rd. T

he m

edia

tor m

ay a

t any

tim

e co

mm

unic

ate

sepa

rate

ly w

ith th

e pa

rties

if sh

e/he

de

ems i

t nec

essa

ry to

do

so.

9. T

he m

edia

tor s

hall

prom

ote

the

settl

emen

t of t

he is

sues

in

disp

ute

in a

ny m

anne

r tha

t she

/he

belie

ves t

o be

app

ropr

iate

. To

ach

ieve

this,

the

med

iato

r will

: a.

iden

tify

the

issue

s in

disp

ute;

b.

faci

litat

e di

scus

sion

of th

e iss

ues b

y th

e pa

rties

; c.

pro

pose

solu

tions

. H

owev

er, t

he m

edia

tor m

ay n

ot im

pose

a so

lutio

n of

the

disp

ute

on e

ither

par

ty.

Marcel Woitalla

42

3.2.4.2.1.2. Comment The investigation of the conduct of the procedure has considered two aspects – dealing with the procedural role and the mediator’s approach.

While the “procedural control” at SDSI and SRUK clearly lies with the media-tor, CAS and SDRCC initially allow the parties to determine the procedure. Ac-cording to the rules of CAS and SDRCC, the mediator in principle does not have control of the procedure; only if the parties cannot agree on a certain conduct of the mediation will the mediator receive procedural control.

With regard to the rules of the CAS, Blackshaw199 has already noted that this is a slight deviation from the general principle that the mediator is the one who controls the procedural aspects of the mediation. Such a rule, on one hand, strengthens the self-determination of the parties; on the other hand, the role of the mediator as controller of the procedure is thereby diminished. As previously mentioned, a significant added value of mediation compared to negotiation lies in the discharge, which results from the fact that the parties yield the responsibility of the determination of the procedure to the mediator and can therefore concen-trate entirely on the discussion of the conflict themes.200 The advantage of media-tion can be seen as precisely the fact that the mediator is entrusted as a third party with procedural control. In this respect, such a design of the procedural control can both lead to ambiguity about the function and role of the mediator in the mediation process and weaken the status of mediation as a serious procedure within ADR procedures. Therefore, the procedural control of the mediator must supplant the self-determination of the mediation parties in regard to the determi-nation of the procedure. CAS and SDRCC are advised to modify their rules so that the procedural control lies without limitation with the mediator.

With regard to the content-related course of action of the mediator, it should be noted that SDSI, SDRCC, and SRUK, with the exception of the CAS201, have not made specific stipulations in their respective codes. In this regard, the deter-mination of the procedure is completely dependent upon the mediator.202

__________ 199 Blackshaw in Nafziger/Ross, Handbook on International Sports Law 85; Blackshaw, Mediating Sports Disputes, National and International Perspectives 63. 200 Wendenburg, ZKM 2014, 37. 201 See Art. 9 CASMR. 202 Furthermore, the possibility of one-on-one interviews as the CAS has explicitly mentioned in its code, can be useful in order to start up again with mediationtalks after a break, cf. Duve/Zürn, Gemeinsame Gespräche oder Einzelgespräche? – Vom Nutzen des Beichtstuhlverfahrens in der Mediation, ZKM 2001, 108 (110). Moreover, in practice, from a mediator's point of view when conducting such one-on-one interviews, care must


43

This guarantees maximum flexibility and has the advantage that different me-diation styles are possible depending on the particular mediator. The disad-vantage is that there is no advance transparency about the mediation style and no consistency with regard to the course of action of the mediators from a particular institution. However, this could be crucial for the selection and appointment of a mediator and thus for a specific code. Therefore, it would be useful if the codes contain more information about the mediation style and the mediators’ approach in order to show that mediation is a structured, interest-based decision-making process rather than “art.” Furthermore, it would be interesting for further studies to examine providers’ qualifications and requirements on a mediator because, from the parties’ point of view, the qualifications of the mediator can be decisive for the selection of a specific set of rules.203

In the absence of a description of the course of action of the mediator, it is also not surprising that the principle of interest orientation is not included in any of the examined sets of rules.

Only the SDRCC has determined in its rules about “resolution facilitation” that a “resolution facilitator” works with the parties towards an agreement, focus-ing on effective communication and the parties’ interests.204 This is remarkable in that the SDRCC has also set up its own regulations on mediation. This two-pronged approach between “resolution facilitation” and “mediation” suggests that both procedures differ with regards to their content. The lack of distinction also becomes clear by looking more closely at the description of the role of the third party in both procedures: the resolution facilitator acts as a neutral “process man-ager” to help the parties better communicate with each other, examine their un-derlying needs and interests, and try to find creative solutions to their disputes.205 From this role description, it does not appear possible to distinguish between the

be taken to ensure that the mediator held his multipartiality, cf. Leiss, Einzelgespräche – ein probates Mittel in der Mediation, ZKM 2006, 74 (75); see Fritz/Klenk, Einzelgespräche – Teil 1, ZKM 2016, 164 (165); Fritz/Klenk, Einzelgespräche – Teil 2, ZKM 2016, 210 ff. 203 Furthermore, in the field of sports mediation, an analysis of the criteria to choose a mediator is provided by Hopper/Doman, Sports Mediation: Getting the Right Mediator, Bulletin TAS CAS Bulletin 2017/2, 19 ff, available at: http://www.tas-cas.org/fileadmin/user_upload/Bulletin_2017_2.pdf (last visited Aug. 08, 2018). 204 Art. 4.1 (a) CSDRC; the resolution facilitator can also help parties better understand the other options available from the SDRCC to help resolve the dispute; see Art. 4.1 (b) CSDRC. 205 For more information, see SDRCC, Dispute Resolution Services, http://www.crdsc-sdrcc.ca/eng/dispute-resolution-facilitation (last visited Aug. 08, 2018).

Marcel Woitalla

44

role of a resolution facilitator and mediator.206 From the code itself as well as from the information of the website of the SDRCC, a clear separation or distinc-tion between the two procedures does not arise.

This finding raises further questions. First, the question arises as to how the two procedures differ and what relevance and added value the rules of Resolution Facilitation have. From the parties’ point of view, this raises the question of which criterion is decisive for the selection of one of the two procedures. Fur-thermore, from the point of view of the SDRCC, it is to be considered whether a merger of the rules of mediation and resolution facilitation makes sense. Of course, answering these questions would go beyond the scope of this research and be too far removed from the research question. Nevertheless, these questions show that such a difficulty of differentiation between mediation and resolution facilitation can have negative consequences in several areas. From the parties’ point of view, the choice of a suitable procedure is made more difficult. Further-more, the reputation of the SDRCC as an institution may suffer as well. Moreo-ver, such handling of the terminology also damages ADR in general. In this re-spect, the SDRCC is advised to revise their resolution facilitation and mediation regulations and clearly define the profile of the resolution facilitator and the mediator in order to allow an explicit distinction between these procedural forms.

3.2.4.2.2. Mediator’s Influence on Conflict Solution Although both mediation and conciliation ultimately leave the responsibility for the result and decision-making power to the parties, conciliation and mediation, as already mentioned, differ in its extent of third-party-intervention.207 According to the underlying understanding of mediation, the mediator is not allowed to propose solutions.208 Any form of imperious, authoritative, suggestive, or urgent influence would be problematic because it would infringe upon the principle of self-determination of the parties.209 In conciliation, however, the third party is allowed to propose solutions.210 The measure of solution activity therefore affects the degree of the parties’ self-determination.211

__________ 206 Mironi also does not seem to recognize any difference between the procedures of mediation and resolution facilitation of the SDRCC, cf. Mironi, The International Sports Law Journal 2017, 146. 207 Cf. Röthemeyer, ZKM 2013, 49. 208 See 2.1.. 209 Cf. Montada/Kals, Mediation3 69. 210 See 2.1.. 211 Cf. Röthemeyer, ZKM 2013, 49.


45

In the following, the regulatory treatment of the mediator’s influence on con-flict solution is examined and commented upon.

3.2.4.2.2.1. Regulatory Treatment According to the rules of the CAS212, it is expressly allowed for mediators to propose solutions. The SDSI213 has established the rule that if requested by all parties in writing, the mediator may make oral or written recommendations con-cerning an appropriate resolution of the dispute. Otherwise, the mediator will not at any time advise a party or offer an opinion. A rule about dealing with propos-ing solutions by the mediator does not appear to be included in the regulations of the SDRCC. According to the regulations of SRUK214, the mediator is not al-lowed at any time to advise a party or offer an opinion.

__________ 212 Art. 9 c. CASMR. 213 Rule 40.1 SDSIR. 214 § 3.3 SRMP.

Marcel Woitalla

46

Tabl

e 6:

Med

iato

r’s I

nflu

ence

on

Con

flict

Sol

utio

n

Spor

t Res

olut

ions

(U

K)

§ 3.

3 SR

MP

3.3

The

Med

iato

r will

not

at

any

tim

e ad

vise

a p

arty

or

off

er a

n op

inio

n. T

he

Med

iato

r’s i

ndep

ende

nce

and

impa

rtial

ity is

to b

e m

aint

aine

d th

roug

hout

th

e M

edia

tion.

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

No

Arti

cle

Spor

t Dis

pute

So

lutio

ns Ir

elan

d

Rul

e 40

.1 S

DSI

R

40.1

If re

ques

ted

by a

ll Pa

rties

in w

ritin

g, th

e M

edia

tor m

ay m

ake

oral

or

writ

ten

reco

mm

enda

-tio

ns c

once

rnin

g an

ap

prop

riate

reso

lutio

n of

th

e di

sput

e. O

ther

wis

e,

the

Med

iato

r will

not

at

any

time

advi

se a

par

ty o

r of

fer a

n op

inio

n.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

9 c

. CA

SMR

9. T

he m

edia

tor s

hall

prom

ote

the

settl

emen

t of t

he is

sues

in

disp

ute

in a

ny m

anne

r tha

t sh

e/he

bel

ieve

s to

be a

ppro

pria

-te

. To

achi

eve

this

, the

med

ia-

tor w

ill:

[...]

c. p

ropo

se so

lutio

ns.

How

ever

, the

med

iato

r may

not

im

pose

a so

lutio

n of

the

disp

u-te

on

eith

er p

arty

.


47

3.2.4.2.2.2. Comment As mentioned previously, the measure of the mediator’s influence on conflict solution affects the principle of self-determination.

With regard to the design of the “solution activity”, all four codes differ from each other.

The CAS215 expressly allows the proposing of solutions by a mediator. If the mediator is given the opportunity to propose recommendations and solutions, according to the underlying understanding of mediation, this blurs the line be-tween mediation and conciliation. In this respect, the view of the CAS does not correspond to the understanding of mediation according to this thesis. The ad-vantage of such a point of view is that the third party is allowed to present a solu-tion that takes due account of the parties’ interests and that the parties do not see by themselves.

SDSI216 has established the rule that if requested by all parties in writing, the mediator may make oral or written recommendations concerning an appropriate resolution of the dispute. By establishing this rule, the SDSI offers a differentiat-ed solution. The written request of all parties takes into account the self-determination of the parties. In contrast to the view allowing mediators to pro-pose solutions without asking the parties, in this case, the self-determination of the parties is realized to a higher extent because the parties can decide on their own whether or not they would like a mediators’ proposal. Notwithstanding, this view is contrary to the underlying understanding of mediation.

A rule about dealing with proposing solutions by the mediator does not seem to be included in the regulations of the SDRCC. For the sake of clarity and trans-parency, the SDRCC should insert a rule about the mediator’s influence on con-flict solution in its code in order to define the attitude of the mediator’s approach. In addition, the missing rule again raises the question of the distinction and de-limitation between resolution facilitation and mediation.217

SRUK hold a narrow view in formulating that the mediator will not at any time advise a party or offer an opinion. The advantage of strict regulation is that there is no ambiguity in the role of the mediator; the disadvantage, however, may be that the mediator may have a solution in mind that takes due account of the

__________ 215 Art. 9 c. CASMR. 216 Rule 40.1 SDSIR. 217 See 3.2.4.2.1.2..

Marcel Woitalla

48

parties’ interests and that the parties do not see by themselves, and he is not al-lowed to present it.218 Nevertheless, this view corresponds to the underlying understanding of mediation.

3.2.5. Dealing with the Principle of Multipartiality

The principle of multipartiality, as previously mentioned, is important for the success of a mediation procedure because an infringement of the principle of multipartiality could shatter confidence in the mediator and in the mediation procedure as a whole.219 Therefore, in the following, the rules that protect the multipartiality of the mediator are examined and commented upon. The term “multipartiality” shall also contain the terms “impartiality,” “independence,” and “neutrality.”220

3.2.5.1. Regulatory Treatment According to the rules of the CAS221, SDSI222, and the SDRCC223, the mediator shall disclose any facts or circumstances which might be of such a nature as to call into question his independence in the eyes of any of the parties. Moreover, in contrast to SDSI and SDRCC, the CAS224 expressly stipulates that the parties may agree in writing to authorize the mediator to continue his mandate. SRUK does not seem to have established a rule addressing this in its code.

Furthermore, CAS and SDSI have regulated the possibility to appoint another mediator in specific cases. The CAS225 formulates that “in the event of an objec-tion by any of the parties, or at her/his own discretion if she/he deems her-self/himself unable to bring the mediation to a successful conclusion, the media-tor shall cease her/his mandate and inform the CAS President accordingly, whereupon the latter will make arrangements to replace her/him, after consulting the parties and offering them the possibility to appoint another CAS mediator.”

__________ 218 Cf. Montada/Kals, Mediation3 69. 219 See 2.2.4.. 220 See 2.2.4.. 221 Art. 6 CASMR. 222 Rule 37.2 SDSIR. 223 Art. 3.2 (d) CSDRC. 224 Art. 6 CASMR. 225 Art. 6 CASMR.


49

The SDSI226 has determined that if a party raises an objection to the mediator, if the mediator discloses a potential conflict of interest, or if the mediator indicates that he is unable to act, the Secretariat may replace the mediator after consultation with the parties. SDRCC and SRUK have not, as far as can be seen, explicitly established rules about objections.

A strict restriction or ban on a mediator’s activities in connection with his mul-tipartiality (neutrality, impartiality, or independence) is, as far as can be seen, not regulated by any of the providers.227

__________ 226 Rule 38.1 SDSIR. 227 Cf. § 2 (3) MediationsG.

Marcel Woitalla

50

Tabl

e 7:

Dea

ling

with

the

Prin

cipl

e of

Mul

tipar

tialit

y

Spor

t Res

olut

ions

(U

K)

§ 3.

3 SR

MP

3.3

The

Med

iato

r will

not

at

any

time

advi

se a

par

ty o

r of

fer a

n op

inio

n. T

he

Med

iato

r’s in

depe

nden

ce

and

impa

rtial

ity is

to b

e m

aint

aine

d th

roug

hout

the

Med

iatio

n.

Spor

t Dis

pute

Res

olu-

tion

Cen

tre

of C

anad

a

Art.

3.2

(d) C

SDRC

3.2

(d) U

pon

bein

g ap

poin

ted

to

deal

with

a p

artic

ular

Spo

rts-

Rel

ated

Dis

pute

, all

Med

iato

rs,

Arb

itrat

ors a

nd M

ed/A

rb N

eut-

rals

shal

l im

med

iate

ly d

iscl

ose

to

the

Parti

es a

nd th

e SD

RC

C a

ny

conf

lict o

r pot

entia

l con

flict

of

inte

rest

and

any

circ

umst

ance

s th

at c

ould

cre

ate

a re

ason

able

ap

preh

ensi

on o

f bia

s in

resp

ect o

f th

eir a

ppoi

ntm

ent.

Spor

t Dis

pute

Sol

utio

ns

Irel

and

Rul

e 37

.2 S

DSI

R ;

Rul

e 38

.1

SDSI

R

37.2

The

Med

iato

r sha

ll be

and

m

ust r

emai

n in

depe

nden

t of t

he

Parti

es, a

nd is

bou

nd to

dis

clos

e,

both

to S

DSI

and

to th

e Pa

rties

, any

ci

rcum

stan

ces l

ikel

y to

com

prom

ise

his/

her i

ndep

ende

nce

with

resp

ect t

o an

y of

the

Parti

es, o

r any

oth

er

mat

ter o

f whi

ch th

e M

edia

tor i

s aw

are

whi

ch c

ould

be

rega

rded

as

invo

lvin

g a

conf

lict o

f int

eres

t (w

heth

er a

ppar

ent,

pote

ntia

l or

actu

al) i

n th

e m

edia

tion.

38

.1 If

a P

arty

rais

es a

n ob

ject

ion

to

the

Med

iato

r, if

the

Med

iato

r di

sclo

ses a

pot

entia

l con

flict

of

inte

rest

, or i

f the

Med

iato

r ind

icat

es

that

he/

she

is u

nabl

e to

act

, the

Se

cret

aria

t may

repl

ace

the

Med

ia-

tor,

afte

r con

sulta

tion

with

the

Parti

es.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

6 C

ASM

R

6. U

nles

s the

par

ties h

ave

join

tly se

lect

ed a

m

edia

tor f

rom

the

list o

f CA

S m

edia

tors

, the

m

edia

tor s

hall

be a

ppoi

nted

by

the

CA

S Pr

esi-

dent

, afte

r con

sulta

tion

with

the

parti

es, f

rom

am

ong

the

list o

f CA

S m

edia

tors

. In

acc

eptin

g su

ch a

ppoi

ntm

ent,

the

med

iato

r un

derta

kes t

o de

vote

suffi

cien

t tim

e to

the

med

iatio

n pr

ocee

ding

s to

perm

it th

em to

be

cond

ucte

d ex

pedi

tious

ly.

The

med

iato

r sha

ll be

and

mus

t rem

ain

impa

rti-

al, a

nd in

depe

nden

t of t

he p

artie

s, an

d sh

all

disc

lose

any

fact

s or c

ircum

stan

ces w

hich

mig

ht

be o

f suc

h na

ture

as t

o ca

ll in

to q

uest

ion

her/h

is

inde

pend

ence

in th

e ey

es o

f any

of t

he p

artie

s. N

otw

ithst

andi

ng a

ny su

ch d

iscl

osur

e, th

e pa

rties

m

ay a

gree

in w

ritin

g to

aut

horiz

e th

e m

edia

tor

to c

ontin

ue h

is m

anda

te.

In th

e ev

ent o

f an

obje

ctio

n by

any

of t

he

parti

es, o

r at h

er/h

is o

wn

disc

retio

n if

she/

he

deem

s her

self/

him

self

unab

le to

brin

g th

e m

edia

tion

to a

succ

essf

ul c

oncl

usio

n, th

e m

edia

tor s

hall

ceas

e he

r/his

man

date

and

info

rm

the

CA

S Pr

esid

ent a

ccor

ding

ly, w

here

upon

the

latte

r will

mak

e ar

rang

emen

ts to

repl

ace

her/h

im, a

fter c

onsu

lting

the

parti

es a

nd o

f-fe

ring

them

the

poss

ibili

ty to

app

oint

ano

ther

C

AS

med

iato

r.


51

3.2.5.2. Comment With regard to regulatory treatment in dealing with the principle of multipartiali-ty, it has already been noted that the principle of multipartiality is not mentioned explicitly in any of the examined codes. To this extent, as far as can be seen, no institution has regulated the support of the mediator for an occasional “weaker” party that is contained in the principle of multipartiality.228 However, the im-portance of the mediator’s impartiality or/and independence is contained in the rules of the CAS, SDSI, SDRCC, and SRUK.229

Furthermore, the providers have established rules in order to protect the prin-ciple of multipartiality. These rules indirectly contain the principle of multipar-tiality as well, but the design of these rules differs.

Three of the four examined codes contain rules about disclosure.230 Especially with regard to the protection of independence and the principle of multipartiality, SRUK is advised to establish a rule that requires a disclosure of the mediator, if there are any facts or circumstances that might be of such nature as to call into question his independence in the eyes of any of the parties.

Unlike the CAS231, SDSI232 and SDRCC233 have not explicitly described the consequences of any disclosure of the mediator. In this respect, according to the principle of self-determination, it can be assumed that the mediator will remain even if the parties do not express any objections. The rule of the CAS that “the parties may agree in writing to authorize the mediator to continue his mandate”234 concretizes the principle of self-determination. Furthermore, the textualization ensures legal certainty and can serve as proof.

The rule of the CAS235 and SDSI236 dealing with the possibility to appoint an-other mediator helps the parties to gain trust in the procedure and serves to pro-tect the principle of multipartiality. In this respect, SDRCC and SRUK, which, as far as can be seen, have not established an explicit rule, are advised to insert an explicit rule into their codes.

__________ 228 See 2.2.4.. 229 See 3.2.1.. 230 Art. 6 CASMR; Rule 37.2 SDSIR; Art. 3.2 (d) CSDRC. 231 Art. 6 CASMR. 232 Rule 37.2 SDSIR. 233 Art. 3.2 (d) CSDRC. 234 Art. 6 CASMR. 235 Art. 6 CASMR. 236 Rule 38.1 SDSIR.

Marcel Woitalla

52

Moreover, the lack of a rule about strict restriction or ban from practicing his activity as a mediator is accompanied by a high degree of self-determination of the parties. It is entirely the parties’ own choice to appoint another mediator.

3.2.6. Dealing with the Principle of Confidentiality

As previously mentioned,237 the principle of confidentiality and its protection is significant to finding an amicable solution between the parties. Therefore, the regulatory treatment of the principle of confidentiality is examined and comment-ed upon.

3.2.6.1. Regulatory Treatment According to the rules of the SDSI and the SDRCC, the meetings between the mediator and the parties “shall be confidential.”238 SRUK239 formulates that every person involved in the mediation will keep all information confidential. The CAS, however, is, as far as can be seen, the only organization to have explicitly mentioned that the mediator, the parties, their representatives and advisers, and any other person present during the meetings between the parties “shall sign a confidentiality agreement.”240

All providers have determined confidentiality obligations to third parties and exceptions for confidentiality in their codes.241

Furthermore, all providers have established rules about the handling of state-ments of a mediator related to mediation in other procedures (e.g. no appointment as a witness).242

In connection with the initiation of proceedings in relation to the dispute, SDSI243 has established the rule that “the parties shall not initiate, during the mediation process, any arbitral or judicial proceedings in respect to the dispute, except that a party may initiate arbitral or judicial proceedings when the initiation of such proceedings is necessary in order to preserve its rights in the event that

__________ 237 See 2.2.3.. 238 Rule 59.1 SDSIR; Art. 5.7 (a) CSDRC. 239 § 11.1 SRMP. 240 Art. 10 CASMR. 241 Art. 10 CASMR; Rule 59. SDSIR; Art. 5.7 (b) CSDRC; § 11. SRMP. 242 Art. 10 CASMR; Rule 59.2 (ii) (a) SDSIR; Art. 5.7 (c) CSDRC and Art. 3.3 CSDRC; § 3.6 SRMP. 243 Rule 38.2 SDSIR.


53

the mediation is unsuccessful.” According to the rules of SRUK244, “any litiga-tion or arbitration in relation to the dispute may be commenced or continued notwithstanding the mediation unless the parties agree otherwise.” CAS and SDRCC appear to have made no rules about the initiation of proceedings.

CAS245, however, seems to be the only provider to have explicitly mentioned that any information given by one party may be disclosed by the mediator to the other party only with the consent of the former.

Furthermore, according to the rules of the CAS, no record of any kind such as audio or video recording, transcript, or minutes shall be made of the meetings for personal notes of the mediator or the parties.246

__________ 244 § 10.1 SRMP. 245 Art. 10 CASMR. 246 Art. 10 CASMR; SRUK has ruled that no formal record or transcript of the mediation will be made, § 7.1 SRMP.

Marcel Woitalla

54

Tabl

e 8:

Dea

ling

with

the

Prin

cipl

e of

Con

fiden

tialit

y

Spor

t Res

olut

ions

(UK

)

§ 3.

6 SR

MP

; § 7

.1 S

RM

P ; §

10.

1 SR

MP

; § 1

1. S

RM

P

3.6

Non

e of

the

Parti

es to

the

Med

iatio

n A

gree

men

t will

cal

l the

M

edia

tor o

r Spo

rt Re

solu

tions

(UK

) (or

any

em

ploy

ee, c

onsu

ltant

, of

ficer

or r

epre

sent

ativ

e of

Spo

rt Re

solu

tions

(UK

)) as

a w

itnes

s, co

nsul

tant

, arb

itrat

or o

r exp

ert i

n an

y lit

igat

ion

or a

rbitr

atio

n in

re

latio

n to

the

disp

ute,

nor

requ

ire h

im/h

er/th

em to

pro

duce

in

evid

ence

any

reco

rd o

r not

es re

latin

g to

the

med

iatio

n in

any

litig

ati-

on, a

rbitr

atio

n or

oth

er fo

rmal

pro

cess

aris

ing

from

or i

n co

nnec

tion

with

the

disp

ute

and

the

med

iatio

n. T

he M

edia

tor a

nd S

port

Reso

luti-

ons (

UK

) will

not

act

or a

gree

to a

ct a

s a w

itnes

s, co

nsul

tant

, arb

itra-

tor o

r exp

ert i

n an

y su

ch p

roce

ss.

7.1

No

form

al re

cord

or t

rans

crip

t of t

he m

edia

tion

will

be

mad

e.

10.1

Any

litig

atio

n or

arb

itrat

ion

in re

latio

n to

the d

isput

e m

ay b

e co

mm

ence

d or

con

tinue

d no

twith

stand

ing

the

med

iatio

n un

less

the

Parti

es a

gree

oth

erw

ise.

11.1

Eve

ry p

erso

n in

volv

ed in

the

med

iatio

n w

ill k

eep

conf

iden

tial

and

not u

se fo

r any

col

late

ral o

r ulte

rior p

urpo

se a

ll in

form

atio

n,

(whe

ther

giv

en o

rally

, in

writ

ing

or o

ther

wise

), pr

oduc

ed fo

r, or

ar

ising

in re

latio

n to

, the

med

iatio

n in

clud

ing

the

Settl

emen

t Agr

ee-

men

t (if

any)

aris

ing

out o

f it e

xcep

t ins

ofar

as i

s nec

essa

ry to

im

plem

ent a

nd e

nfor

ce a

ny su

ch S

ettle

men

t Agr

eem

ent.

11.2

All

docu

men

ts (w

hich

incl

ude

anyt

hing

upo

n w

hich

evi

denc

e is

reco

rded

incl

udin

g ta

pes a

nd c

ompu

ter d

iscs)

or o

ther

info

rmat

ion

prod

uced

for,

or a

risin

g in

rela

tion

to, t

he m

edia

tion

will

be

priv

ilege

d an

d no

t be

adm

issib

le a

s evi

denc

e or

disc

over

able

in a

ny li

tigat

ion

or

arbi

tratio

n co

nnec

ted

with

the

disp

ute

exce

pt a

ny d

ocum

ents

or o

ther

in

form

atio

n w

hich

wou

ld in

any

eve

nt h

ave

been

adm

issib

le o

r di

scov

erab

le in

any

such

litig

atio

n or

arb

itrat

ion.

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

Art.

3.3

CSD

RC

; A

rt. 5

.7 C

SDR

C

3.3

Med

iato

rs, A

rbitr

ator

s, M

ed/A

rb N

eutra

ls, m

embe

rs o

f the

Boa

rd o

f Dire

ctor

s of t

he S

DRC

C an

d sta

ff o

f the

SD

RCC

are

not c

ompe

llabl

e w

itnes

ses i

n an

y co

urt o

r adm

inist

rativ

e pr

ocee

ding

, in

clud

ing

othe

r SD

RCC

proc

eedi

ngs,

and

none

of t

he P

artie

s may

atte

mpt

to su

bpoe

na o

r de

man

d th

e pr

oduc

tion

of a

ny n

otes

, rec

ords

or d

ocum

ents

prep

ared

by

the

SDRC

C in

the

cour

se o

f the

Med

iatio

n, A

rbitr

atio

n or

Med

/Arb

. 5.

7 (a

) The

mee

tings

bet

wee

n th

e M

edia

tor a

nd th

e Pa

rties

shal

l be

conf

iden

tial a

nd w

ithou

t pr

ejud

ice.

(b

) The

Med

iato

r, th

e Pa

rties

, the

ir re

pres

enta

tives

and

adv

isors

, the

exp

erts

and

any

othe

r Pe

rson

s pre

sent

dur

ing

the

Med

iatio

n sh

all n

ot d

isclo

se to

any

third

par

ty a

ny in

form

atio

n or

do

cum

ent g

iven

to th

em d

urin

g th

e M

edia

tion,

unl

ess r

equi

red

by la

w to

do

so.

(c) T

he M

edia

tor m

ay n

ot b

e ca

lled

as a

witn

ess a

nd th

e Pa

rties

und

erta

ke n

ot to

com

pel t

he

Med

iato

r to

divu

lge

reco

rds,

repo

rts o

r oth

er d

ocum

ents,

or t

o te

stify

in re

gard

to th

e M

edia

tion

in a

ny a

rbitr

al o

r jud

icia

l pro

ceed

ings

, inc

ludi

ng p

roce

edin

gs b

efor

e th

e SD

RCC,

unl

ess r

equi

red

by la

w to

do

so.

(d) A

ll w

ritte

n an

d or

al st

atem

ents

and

settl

emen

t disc

ussio

ns m

ade

in th

e co

urse

of M

edia

tion

will

be

treat

ed a

s hav

ing

been

mad

e w

ithou

t pre

judi

ce, a

nd c

anno

t be

disc

lose

d to

a P

anel

exc

ept

afte

r a d

ecisi

on h

as b

een

rend

ered

, and

then

, onl

y w

ith re

spec

t to

the

issue

of c

osts.


55

Tabl

e 9:

Dea

ling

with

the

Prin

cipl

e of

Con

fiden

tialit

y

Spor

t Dis

pute

Sol

utio

ns Ir

elan

d

Rul

e 38

.2 S

DSI

R ;

Rul

e 59

. SD

SIR

38.2

The

Par

ties s

hall

not i

nitia

te, d

urin

g th

e m

edia

tion

proc

ess,

any

arbi

tral o

r jud

icia

l pro

ceed

ings

in

resp

ect o

f the

disp

ute,

exc

ept t

hat a

Par

ty m

ay in

itiat

e ar

bitra

l or j

udic

ial p

roce

edin

gs w

hen

the

initi

atio

n of

such

pro

ceed

ings

is n

eces

sary

in o

rder

to p

rese

rve

its ri

ghts

in th

e ev

ent t

hat t

he

med

iatio

n is

unsu

cces

sful

. 59

.1 A

ll pr

ocee

ding

s with

SD

SI sh

all b

e co

nfid

entia

l. Th

e Pa

rties

, the

ir re

pres

enta

tives

, exp

erts,

w

itnes

ses,

the

Arb

itrat

ion

Pane

l and

or M

edia

tor a

nd th

e Se

cret

aria

t or a

ny o

ther

per

son(

s) in

volv

ed

in th

e pr

ocee

ding

s may

not

disc

lose

to a

ny th

ird p

arty

any

info

rmat

ion

give

n to

them

dur

ing

the

proc

eedi

ng. A

ll in

form

atio

n an

d do

cum

ents

prov

ided

to S

DSI

in c

onne

ctio

ns in

the

proc

eedi

ngs

shal

l be

conf

iden

tial s

ave

whe

re d

isclo

sure

of t

he in

form

atio

n m

ay b

e re

quire

d by

law

, to

purs

ue o

r pr

otec

t a le

gal r

ight

, to

enfo

rce

or c

halle

nge

an a

war

d in

bon

a fid

e le

gal p

roce

edin

gs o

r whe

re su

ch

docu

men

ts m

ay a

lread

y be

in th

e pu

blic

dom

ain

(oth

erw

ise th

an in

bre

ach

of th

is un

derta

king

). 59

.2 N

otw

ithsta

ndin

g 59

.1 a

bove

: (i)

JSI m

ay p

ublis

h th

e A

rbitr

atio

n Pa

nel’s

pub

lish

gene

ric, n

on-id

entif

ying

info

rmat

ion

rela

ting

to

that

arb

itrat

ion

to in

clud

e th

e de

cisio

n an

d its

reas

ons u

nles

s the

Par

ties e

xpre

ssly

agr

ee p

rior t

o th

e A

rbitr

atio

n Pa

nel m

akin

g its

dec

ision

that

they

shou

ld re

mai

n co

nfid

entia

l. (ii

) In

resp

ect o

f all

Med

iatio

ns th

e Pa

rties

shal

l not

: (a

) Com

pel t

he M

edia

tor,

or a

ny o

ffic

er o

r em

ploy

ee o

f SD

SI, t

o di

vulg

e in

form

atio

n or

doc

umen

ts or

to te

stify

or g

ive

evid

ence

in re

gard

to th

e m

edia

tion,

in a

ny a

dver

sary

pro

ceed

ing

or ju

dici

al

foru

m.

(b) R

ely

upon

, or i

ntro

duce

as e

vide

nce

in a

ny a

rbitr

al, j

udic

ial o

r oth

er p

roce

edin

g, d

ocum

ents

or

info

rmat

ion

obta

ined

dur

ing

the

med

iatio

n pr

oces

s; vi

ews e

xpre

ssed

or s

ugge

stion

s or p

ropo

sals

mad

e by

a P

arty

or t

he M

edia

tor i

n th

e co

urse

of t

he m

edia

tion

proc

ess;

or a

dmiss

ions

mad

e by

a

Party

in th

e co

urse

of t

he m

edia

tion

proc

ess;

or th

e fa

ct th

at a

Par

ty h

ad o

r had

not

indi

cate

d a

will

ingn

ess t

o ac

cept

a p

ropo

sal m

ade

by a

noth

er P

arty

or b

y th

e M

edia

tor.

59.3

The

requ

irem

ent t

o co

nfid

entia

lity

shal

l not

app

ly if

, and

to th

e ex

tent

that

: (i)

All

Parti

es c

onse

nt to

a d

isclo

sure

; or

(ii) T

he A

rbitr

ator

/Med

iato

r is r

equi

red

by la

w to

mak

e di

sclo

sure

; or

(iii)

The

Arb

itrat

or/M

edia

tor r

easo

nabl

y co

nsid

ers t

hat t

here

is a

serio

us ri

sk o

f sig

nific

ant h

arm

to

the

life

or sa

fety

of a

ny p

erso

n if

the

info

rmat

ion

in q

uesti

on is

not

disc

lose

d; o

r (iv

) The

Arb

itrat

or/M

edia

tor r

easo

nabl

y co

nsid

ers t

hat t

here

is a

serio

us ri

sk o

f his/

her b

eing

subj

ect

to c

rimin

al p

roce

edin

gs u

nles

s the

info

rmat

ion

in q

uesti

on is

disc

lose

d. T

he a

bove

pro

visio

ns

rela

ting

to p

rivac

y an

d co

nfid

entia

lity

are

subj

ect a

lway

s, to

the

abili

ty o

f the

Sec

reta

riat,

whe

re th

e pr

ocee

ding

s are

taki

ng p

lace

und

er th

e ru

les,

regu

latio

ns o

r dire

ctio

n of

a th

ird p

arty

but

the

third

pa

rty is

not

dire

ctly

invo

lved

in th

e pr

ocee

ding

s, to

upd

ate

that

third

par

ty o

f the

stag

e at

whi

ch th

e pr

ocee

ding

s are

at w

ithou

t disc

losin

g an

y of

the

subs

tanc

e of

thos

e pr

ocee

ding

s.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

10

CA

SMR

10. T

he m

edia

tor,

the

parti

es, t

heir

repr

esen

tativ

es a

nd a

dvise

rs,

and

any

othe

r per

son

pres

ent d

urin

g th

e m

eetin

gs b

etw

een

the

parti

es sh

all s

ign

a co

nfid

entia

lity

agre

emen

t and

shal

l not

di

sclo

se to

any

third

par

ty a

ny in

form

atio

n gi

ven

to th

em d

urin

g th

e m

edia

tion,

unl

ess r

equi

red

by la

w to

do

so.

Unl

ess r

equi

red

to d

o so

by

appl

icab

le la

w a

nd in

the

abse

nce

of

any

agre

emen

t of t

he p

artie

s to

the

cont

rary

, a p

arty

shal

l not

co

mpe

l the

med

iato

r to

divu

lge

reco

rds,

repo

rts o

r oth

er

docu

men

ts, o

r to

testi

fy in

rega

rd to

the

med

iatio

n in

any

arb

itral

or

judi

cial

pro

ceed

ings

. A

ny in

form

atio

n gi

ven

by o

ne p

arty

may

be

disc

lose

d by

the

med

iato

r to

the

othe

r par

ty o

nly

with

the

cons

ent o

f the

form

er.

But f

or p

erso

nal n

otes

of t

he M

edia

tor o

r the

Par

ties,

no re

cord

of

any

kind

such

as a

udio

or v

ideo

reco

rdin

g, tr

ansc

ript o

r min

utes

sh

all b

e m

ade

of th

e m

eetin

gs.

Unl

ess r

equi

red

to d

o so

by

appl

icab

le la

w a

nd in

the

abse

nce

of

any

agre

emen

t of t

he p

artie

s to

the

cont

rary

, the

par

ties s

hall

not

rely

on,

or i

ntro

duce

as e

vide

nce

in a

ny a

rbitr

al o

r jud

icia

l pr

ocee

ding

s: a.

vie

ws e

xpre

ssed

or s

ugge

stion

s mad

e by

a p

arty

with

resp

ect t

o a

poss

ible

settl

emen

t of t

he d

isput

e;

b. a

dmiss

ions

mad

e by

a p

arty

in th

e co

urse

of t

he m

edia

tion

proc

eedi

ngs;

c. d

ocum

ents,

not

es o

r oth

er in

form

atio

n ob

tain

ed d

urin

g th

e m

edia

tion

proc

eedi

ngs;

d. p

ropo

sals

mad

e or

vie

ws e

xpre

ssed

by

the

med

iato

r; or

e.

the

fact

that

a p

arty

had

or h

ad n

ot in

dica

ted

will

ingn

ess t

o ac

cept

a p

ropo

sal.

Marcel Woitalla

56

3.2.6.2. Comment Mironi has claimed that strict confidentiality is an enshrined premise of media-tion and is commonly secured not only by legislation, but also by the rules of the institutions providing the mediation services, by codes of professional ethics, and by standard mediation agreements.247 This statement is confirmed even after examining the codes of the providers. Regarding the regulatory treatment of the principle of confidentiality, the principle is explicitly mentioned in the codes of all four providers.248 Furthermore, the rules as to the protection the principle of confidentiality imply the principle of confidentiality as well.

The codes differ in their design. All providers have in common that they have built external confidentiality obligations and exceptions for confidentiality into their codes.249 In doing so, confidentiality obligations may protect confidentiality by sanctioning the public proclamation and disclosure of certain information to third parties, thus creating an incentive to keep this information confidential.250 Furthermore, the established rules about how to handle statements of the mediator related to mediation in other proceedings also serve to protect confidentiality. Creating an open, trusting relationship would be made more difficult if, in the event of the failure of the mediation, the parties were to expect one another to use the disclosed information to their advantage, particularly in a subsequent adver-sarial procedure.251 The confidence of a party that its statements during the medi-ation procedure cannot be to its own detriment in a subsequent legal proceeding is essential for its willingness to open itself to the other party and to the mediator and thus also for the functioning of the mediation. Furthermore, it should be noted that the confidentiality obligations (and their exceptions) as well as the rules in connection with proceedings differ in detail. A thorough analysis, would go beyond the scope of this paper, but would be well-suited for further study.

In addition to the aforementioned similarities, there are some isolated rules that cannot be found in all of the examined codes.

The CAS252 is the sole provider to have explicitly mentioned the signing of a confidentiality agreement. The establishment of such a rule should not be manda-

__________ 247 Mironi, The International Sports Law Journal 2017, 137. 248 Art. 10 CASMR; Rule 59. SDSIR; Art. 5.7 CSDRC; § 11. SRMP. 249 Art. 10 CASMR; Rule 59. SDSIR; Art. 5.7 (b) CSDRC; 11. SRMP. 250 Hilbert, Die Sicherung der Vertraulichkeit des Mediationsverfahrens 19. 251 Hilbert, Die Sicherung der Vertraulichkeit des Mediationsverfahrens 5. 252 Art. 10 CASMR.


57

tory; this is because, according to the underlying understanding of mediation, the mediator is responsible for discussing with the parties the confidentiality of the mediation and its regulatory treatment in Phase 1.253

Furthermore, as far as can be seen, the CAS is the only provider to have ex-plicitly regulated the protection of the “internal confidentiality” of the parties. As previously mentioned, the CAS has established a rule regarding the possibility of conducting one-on-one talks in its code.254 Therefore, it is understandable that it has also created a rule concerning internal confidentiality. An explicit regulation on internal confidentiality (and about the prohibition of records for personal use by the mediator or the parties during the mediation) serves to protect confidential-ity and should therefore also be considered by the other providers.

With regard to the initiation of a proceeding, the rule of SRUK provides that any litigation or arbitration in relation to the dispute may be commenced or con-tinued notwithstanding the mediation unless the parties agree otherwise.255 In this context, SRUK should consider reversing the relationship of rule and exception of this clause and instead formulate that any litigation or arbitration in relation to the dispute may not be commenced or continued during the mediation unless the parties agree otherwise. In both cases, the self-determination of the parties is affected. In order to protect the confidentiality and to build up trust between the parties it is better to state that any litigation or arbitration in relation to the dispute may not be commenced or continued during the mediation unless the parties agree otherwise.

3.2.7. Dealing with the Settlement

Whether the parties reach a settlement or not is solely their own responsibility. According to the underlying understanding of mediation, the parties bear respon-sibility both for the mediation’s content and for the results of the mediation. This can be also seen as an expression of the principle of self-determination.256

In the following, the regulatory treatment of dealing with the settlement is ex-amined and commented upon.

__________ 253 See 2.2.5.1.1.. 254 Art. 8 CASMR. 255 § 10.1 SRMP. 256 See 2.2.2..

Marcel Woitalla

58

3.2.7.1. Regulatory Treatment With respect to the settlement agreement, SDSI257 and SRUK258 have established a rule that the mediator must assist the parties in drawing up any written settle-ment agreement. CAS and SDRCC, as far as can be seen, have no explicit rule regarding the mediator's duty to assist the parties in drawing up any written set-tlement agreement, but the CAS259 has determined that the settlement is drawn up by the mediator and signed by the parties and the mediator. Furthermore, SDSI260 has determined that the settlement agreement may be drawn up by, or with the assistance of, the mediator, or by the parties themselves. It shall be signed by the mediator and the parties. As far as can be seen, SDRCC and SRUK have not established in their rules who is required to draw up a settlement agreement.261

In relation to the legal bond about commitments or assurances, SDSI262 and SRUK263 have determined that any settlement reached in the mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the parties. CAS and SDRCC do not appear to have set any regulations as to the legal bond.

CAS264 and the SDSI265 have explicitly determined that the mediator has no decision-making authority. In this regard, the mediator may not impose a solution to the dispute on either party. By contrast, as far as can be seen, SDRCC and SRUK have included no explicit rule in their codes regarding the missing deci-sion-making power of the mediator.

Furthermore, all of the examined codes provide for the termination of the me-diation procedure through the signing of a settlement agreement by the parties.266 If the parties cannot agree, the codes have also provided specific rules related to the role of the mediator in the event of subsequent arbitration.267

__________ 257 Rule 37.1 (iv) SDSIR. 258 § 3.2 (d) SRMP. 259 Art. 12 CASMR. 260 Rule 43.3 SDSIR. 261 Cf. Art. 5.10 CSDRC; § 8.1 SRMP. 262 Rule 43.1 SDSIR. 263 § 8.1 SRMP. 264 Art. 9 CASMR. 265 Rule 43.2 SDSIR. 266 Art. 11 a. CASMR; Rule 41.1 (c) SDSIR; Art. 5.9 (a) CSDRC; § 9.3 (a) SRMP. 267 Art. 13 CASMR; Rule 44.1 SDSIR; Art. 5.11 CSDRC; § 3.6 SRMP.


59

Tabl

e 10

: Dea

ling

with

the

Sett

lem

ent

Spor

t Res

olut

ions

(UK

)

§ 3.

2 (d

) SR

MP

; § 3

.6 S

RM

P ; §

8.1

SR

MP

; § 9

.3 (a

) SR

MP

3.2

The

Med

iato

r will

: [...

] (d)

as

sist t

he P

artie

s in

draw

ing

up a

ny

writ

ten

settl

emen

t agr

eem

ent;

[...].

3.

6 N

one

of th

e Pa

rties

to th

e M

edia

tion

Agr

eem

ent w

ill c

all t

he

Med

iato

r or S

port

Reso

lutio

ns

(UK

) (or

any

em

ploy

ee, c

onsu

ltant

, of

ficer

or r

epre

sent

ativ

e of

Spo

rt Re

solu

tions

(UK

)) a

s a w

itnes

s, co

nsul

tant

, arb

itrat

or o

r exp

ert i

n an

y lit

igat

ion

or a

rbitr

atio

n in

re

latio

n to

the

disp

ute,

nor

requ

ire

him

/her

/them

to p

rodu

ce in

ev

iden

ce a

ny re

cord

or n

otes

re

latin

g to

the

med

iatio

n in

any

lit

igat

ion,

arb

itrat

ion

or o

ther

fo

rmal

pro

cess

aris

ing

from

or i

n co

nnec

tion

with

the

disp

ute

and

the

med

iatio

n. T

he M

edia

tor a

nd S

port

Reso

lutio

ns (U

K) w

ill n

ot a

ct o

r ag

ree

to a

ct a

s a w

itnes

s, co

nsul

-ta

nt, a

rbitr

ator

or e

xper

t in

any

such

pr

oces

s. 8.

1 A

ny se

ttlem

ent r

each

ed in

the

med

iatio

n w

ill n

ot b

e le

gally

bi

ndin

g un

til it

has

bee

n re

duce

d to

w

ritin

g an

d sig

ned

by, o

r on

beha

lf of

, the

par

ties.

9.3

The

med

iatio

n w

ill te

rmin

ate

whe

n: (a

) a

writ

ten

Settl

emen

t A

gree

men

t is c

oncl

uded

; or [

...].

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

Art.

5.9

(a) C

SDR

C ;

Art.

5.

10 C

SDR

C ;

Art.

5.1

1 C

SDR

C

5.9

The

Med

iatio

n sh

all b

e te

rmin

ated

on

the

first

of th

e fo

llow

ing

even

ts to

occ

ur: (

a) th

e sig

ning

of a

settl

emen

t agr

eem

ent

by th

e Pa

rties

; [...

]. 5.

10 If

the

Parti

es se

ttle

at th

e M

edia

tion,

a d

ocum

ent e

vide

n-ci

ng th

e te

rms o

f the

settl

emen

t sh

ould

be

prep

ared

and

sign

ed b

y th

e Pa

rties

. A c

opy

of th

e se

ttlem

ent a

gree

men

t sha

ll be

su

bmitt

ed to

the

SDRC

C.

5.11

In th

e ev

ent o

f a fa

ilure

to

reso

lve

a Sp

orts-

Rela

ted

Disp

ute

by M

edia

tion,

the

Med

iato

r sha

ll no

t acc

ept a

n ap

poin

tmen

t as a

n A

rbitr

ator

in a

ny a

rbitr

al p

roce

e-di

ngs c

once

rnin

g th

e Pa

rties

in

volv

ed in

the

sam

e di

sput

e un

less

a M

ed/A

rb a

gree

men

t has

be

en si

gned

by

the

Parti

es, o

r un

less

all

Parti

es (i

nclu

ding

any

A

ffec

ted

Parti

es) o

ther

wise

co

nsen

t in

writ

ing.

If th

e Pa

rties

do

not

settl

e at

Med

iatio

n, th

ey

shal

l con

tinue

on

to A

rbitr

atio

n pu

rsua

nt to

this

Code

unl

ess

othe

rwise

agr

eed

by th

e Pa

rties

in

writ

ing.

Spor

t Dis

pute

Sol

utio

ns Ir

elan

d

Rul

e 37

.1 (i

v) S

DSI

R ;

Rul

e 41

.1 (c

) SD

SIR

; R

ule

43 S

DSI

R ;

Rul

e 44

.1

SDSI

R

37.1

By

acce

ptin

g hi

s/her

app

oint

men

t, th

e M

edia

tor u

nder

take

s to

devo

te su

ffic

ient

tim

e to

the

med

iatio

n pr

oces

s as w

ill a

llow

it

to b

e co

nduc

ted

expe

ditio

usly

and

will

: [...

] (iv

) A

ssist

the

Parti

es in

dra

win

g up

any

w

ritte

n se

ttlem

ent a

gree

men

t if r

equi

red;

[..

.].

41.1

The

med

iatio

n w

ill b

e co

nsid

ered

to b

e ov

er w

hen:

[...]

(c)

A w

ritte

n se

ttlem

ent

agre

emen

t is c

oncl

uded

bet

wee

n th

e Pa

rties

. 43

.1 A

ny se

ttlem

ent r

each

ed in

the

med

iati-

on w

ill n

ot b

e le

gally

bin

ding

unt

il it

has

been

redu

ced

to w

ritin

g an

d sig

ned

by, o

r on

beha

lf of

, the

Par

ties.

43.2

The

Med

iato

r doe

s not

hav

e th

e au

thor

ity to

impo

se a

settl

emen

t on

the

Parti

es.

43.3

The

settl

emen

t agr

eem

ent m

ay b

e dr

awn

up b

y, o

r with

the

assis

tanc

e of

, the

M

edia

tor,

or b

y th

e Pa

rties

and

shal

l be

signe

d by

the

Med

iato

r and

the

Parti

es. A

co

py o

f the

settl

emen

t agr

eem

ent s

hall

be

prov

ided

to S

DSI

and

to e

ach

Party

. In

the

even

t of a

ny b

reac

h of

the

settl

emen

t ag

reem

ent,

a Pa

rty m

ay re

ly o

n su

ch c

opy

befo

re a

n ar

bitra

l or j

udic

ial a

utho

rity.

44

.1 T

he M

edia

tor m

ay n

ot a

ct a

s an

arbi

trato

r or a

s a re

pres

enta

tive

of, o

r co

unse

l to,

a P

arty

in a

ny a

rbitr

al o

r jud

icia

l pr

ocee

ding

s rel

atin

g to

the

Disp

ute.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

12

CA

SMR

; A

rt. 1

3 C

ASM

R

12. T

he se

ttlem

ent i

s dra

wn

up b

y th

e m

edia

tor a

nd

signe

d by

the

parti

es a

nd th

e m

edia

tor.

Each

par

ty sh

all r

ecei

ve a

cop

y th

ereo

f. In

the

even

t of

any

bre

ach,

a p

arty

may

rely

on

such

cop

y be

fore

an

arb

itral

or j

udic

ial a

utho

rity.

In th

e ev

ent o

f any

br

each

, the

par

ties m

ay a

gree

that

the

case

be

reso

lved

by

CAS

arbi

tratio

n, in

acc

orda

nce

with

the

Code

of S

ports

-rela

ted

Arb

itrat

ion.

A

cop

y of

the

settl

emen

t is s

ubm

itted

for i

nclu

sion

in

the

reco

rds o

f the

CA

S Co

urt O

ffice

. 13

. The

par

ties m

ay h

ave

reco

urse

to a

rbitr

atio

n w

hen

a di

sput

e ha

s not

bee

n re

solv

ed b

y m

edia

tion,

pr

ovid

ed th

at a

n ar

bitra

tion

agre

emen

t or c

laus

e ex

ists b

etw

een

the

parti

es.

The

arbi

tratio

n cl

ause

may

be

incl

uded

in th

e m

edia

tion

agre

emen

t. In

such

a c

ase,

the

expe

dite

d pr

oced

ure

prov

ided

for u

nder

arti

cle

R44,

par

agra

ph

4 of

the

Code

of S

ports

-rel

ated

Arb

itrat

ion

may

be

appl

ied.

In

the

even

t of a

failu

re to

reso

lve

a di

sput

e by

m

edia

tion,

the

med

iato

r sha

ll no

t acc

ept a

n ap

poin

t-m

ent a

s an

arbi

trato

r in

any

arbi

tral p

roce

edin

gs

conc

erni

ng th

e pa

rties

invo

lved

in th

e sa

me

disp

ute.

H

owev

er, i

f all

parti

es h

ave

expl

icitl

y ag

reed

so in

w

ritin

g on

ce th

e m

edia

tion

proc

edur

e is

term

inat

ed, i

t is

poss

ible

for t

he m

edia

tor t

o su

bseq

uent

ly a

ct a

s ar

bitra

tor f

or th

e sa

me

disp

ute

and

issue

an

arbi

tral

awar

d in

acc

orda

nce

with

the

CAS

Arb

itrat

ion

Rule

s (“

Med

- Arb

pro

cedu

re”)

. Suc

h m

edia

tor c

an o

nly

act

as a

n ar

bitra

tor i

f she

/he

is al

so o

n th

e lis

t of C

AS

Arb

itrat

ors.

Marcel Woitalla

60

3.2.7.2. Comment As previously mentioned, the parties’ responsibility for the results of the media-tion can be seen as an expression of the principle of self-determination.

By determining the non-decision-making authority of the mediator, CAS268 und SDSI269 have clarified in their codes that the parties are responsible for the results of the mediation. In order to enhance the mediator’s profile and to empha-size responsibility for the results as an expression of the parties’ self-determination, SDRCC and SRUK are advised to establish appropriate rules in their codes.

Furthermore, the examined codes differ in the details regarding the regulatory treatment of the settlement agreement.

Therefore, CAS and SDRCC, who, as far as can be seen, do not have a rule regarding the mediator's duty to assist the parties in drawing up any written set-tlement agreement, are advised to set such a rule in order to enhance the media-tor’s profile.

SRUK and SDRCC do not seem to have made any rules regarding the respon-sibility for the textualization of the agreement.270 It is also in line with the princi-ple of self-determination if the parties have the decision as to whether they or the mediator writes the settlement agreement. Therefore, for clarification, it is rec-ommended that both providers establish specific rules for the responsibility for the textualisation of the settlement agreement.

The CAS has explicitly regulated that the settlement is to be drawn up by the mediator and signed by both the parties and the mediator. With regard to this rule, it should be considered that it may also restrict the self-determination of the par-ties. Even if the mediator may have more experience in dealing with the textual-ization of an agreement, the CAS should consider amending the rule to permit the parties to write their own settlement in order to strengthen their self-determination.

In contrast to SDSI271 and SRUK272, CAS and SDRCC do not appear to have formed any regulations about the legal bond of commitments or assurances made

__________ 268 Art. 9 CASMR. 269 Rule 43.2 SDSIR. 270 About the difference between memorandum and final agreement, see, Harms/Schmitz-Vornmoor, Lehrmo-dul 19: Abschluss der Mediation, ZKM 2013, 154 (155). 271 Rule 43.1 SDSIR. 272 § 8.1 SRMP.


61

by a party prior to signing an agreement. CAS and SDRCC are recommended to regulate the handling of commitments or assurances that have already been made by a party before signing an agreement in order to avoid conflicts about the legal bond of such commitments if they are not included in the settlement agreement. It may also be helpful to enact a rule that partial and provisional agreements are only legally binding if the parties expressly determine this.273 Such a rule helps to avoid a possible conflict over whether a party can accept proposals that have been submitted after the conclusion of the mediation procedure.274

3.2.8. Termination

The institutions have also regulated the possibilities of ending mediation, e.g. the termination by the parties or by a specific time. The parties’ ability to terminate the mediation process at each stage can be seen as an expression of the principle of voluntariness.275 In the following, the regulatory treatment of the termination of the mediation by the parties and by a time limit is examined and commented upon.

3.2.8.1. Regulatory Treatment

All four examined codes provide for the termination of mediation by a party.276 All providers have established the rule that the parties are not required to provide a reason for their withdrawal from the mediation.277 According to the rules of CAS278 and SDRCC279, termination by a party requires a written declaration. In the codes of SDSI280 and SRUK281, there is no written declaration necessary.

Furthermore, some of the providers have established rules in order to be per-mitted to terminate mediation by a specific time. The CAS282 has regulated that

__________ 273 Cf. Schwarz, Mediationsvereinbarung – Muster mit Kommentierungen, ZKM 2008, 111 (114). 274 Schwarz, ZKM 2008, 116. 275 See 2.2.1.. 276 To any further possibilities of termination, see Art. 11 CASMR; Rule 41.1 SDSIR; Art. 5.9 CSDRC; § 9.3 SRMP. 277 Art. 11 c. CASMR; Rule 41.1 (a) SDSIR; Art. 5.9 (d) CSDRC § 9.3 (b) SRMP. 278 Art. 11 c. CASMR. 279 Art. 5.9 (d) CSDRC. 280 Rule 41.1 (a) SDSIR. 281 § 9.3 (b) SRMP. 282 Art. 11 d. CASMR.

Marcel Woitalla

62

the mediation shall be terminated where one of the parties, or both, refuse(s) to pay its (their) share of the mediation costs within the time limit fixed pursuant to Article 14 of the CASMR. According to the rule of the SDSI,283 the secretariat shall have the power to terminate mediation where no written settlement agree-ment is in place between the parties within 30 days of the commencement date. The SDRCC284 has explicitly regulated that occurring the expiry of the estab-lished time limit shall terminate the mediation. SRUK does not appear to have any rule regarding the termination of mediation by a specific time.

__________ 283 Rule 41.2 SDSIR; see also 5.3 (d) Rules & Regulations of the WBC: “The mediation shall be conducted within thirty (30) days of the selection of the mediator, absent special circumstances.” 284 Art. 5.9 (e) and Art. 5.8 CSDRC: “Upon commencing a Mediation, the Parties and the Mediator will agree upon a time when the Mediation proceeding will terminate. In the event that the Parties cannot agree on a time limit for the Mediation, the Mediator will set a time limit, considering the date by which the Sports-Related Dispute must be resolved and the amount of time that would reasonably be required to resolve the Sports-Related Dispute should it go to Arbitration.”


63

Tabl

e 11

: Ter

min

atio

n

Spor

t Res

olut

ions

(UK

)

§ 9.

3 SR

MP

9.3

The

med

iatio

n w

ill te

rmin

a-te

whe

n:

(a) a

writ

ten

Settl

emen

t Agr

ee-

men

t is c

oncl

uded

; or

(b) a

Par

ty w

ithdr

aws f

rom

the

med

iatio

n; o

r (c

) the

Med

iato

r dec

ides

to

retir

e w

here

he/

she

deem

s it t

o be

pro

fess

iona

l to

do so

.

Spor

t Dis

pute

Res

olut

ion

Cen

tre

of C

anad

a

Art.

5.8

; A

rt. 5

.9 C

SDR

C

5.8

Upo

n co

mm

enci

ng a

Med

iatio

n, th

e Pa

rties

and

the

Med

iato

r will

agr

ee u

pon

a tim

e w

hen

the

Med

iatio

n pr

ocee

ding

w

ill te

rmin

ate.

In th

e ev

ent t

hat t

he P

ar-

ties c

anno

t agr

ee o

n a

time

limit

for t

he

Med

iatio

n, th

e M

edia

tor w

ill se

t a ti

me

limit,

con

sider

ing

the

date

by

whi

ch th

e Sp

orts

-Rel

ated

Disp

ute

mus

t be

reso

lved

an

d th

e am

ount

of t

ime

that

wou

ld

reas

onab

ly b

e re

quire

d to

reso

lve

the

Spor

ts-R

elat

ed D

isput

e sh

ould

it g

o to

A

rbitr

atio

n.

5.9

The

Med

iatio

n sh

all b

e te

rmin

ated

on

the

first

of th

e fo

llow

ing

even

ts to

occ

ur:

(a) t

he si

gnin

g of

a se

ttlem

ent a

gree

men

t by

the

Parti

es;

(b) a

writ

ten

decl

arat

ion

by th

e M

edia

tor

to th

e ef

fect

that

furth

er e

fforts

at M

edia

-tio

n ar

e no

long

er w

orth

whi

le;

(c) a

resig

natio

n by

the

Med

iato

r for

oth

er

reas

ons;

(d) a

writ

ten

notic

e by

eith

er th

e C

laim

ant

or th

e Re

spon

dent

term

inat

ing

the

Med

ia-

tion;

or

(e) t

he e

xpiry

of t

he ti

me

limit

esta

blish

ed

purs

uant

to S

ectio

n 5.

8 he

reof

.

Spor

t Dis

pute

So

lutio

ns Ir

elan

d

Rul

e 41

. SD

SIR

41

.1 T

he m

edia

tion

will

be

con

sider

ed to

be

over

whe

n:

(a) A

Par

ty w

ithdr

aws

from

the

med

iatio

n; o

r (b

) The

Med

iato

r, at

hi

s/her

dis

cret

ion,

w

ithdr

aws f

rom

the

med

iatio

n in

writ

ing;

or

(c) A

writ

ten

settl

emen

t ag

reem

ent i

s con

clud

ed

betw

een

the

Parti

es.

41.2

The

Sec

reta

riat

shal

l hav

e th

e po

wer

to

decl

are

a M

edia

tion

over

whe

re n

o w

ritte

n se

ttlem

ent a

gree

men

t is

in p

lace

bet

wee

n th

e Pa

rties

with

in th

irty

(30)

day

s of t

he C

om-

men

cem

ent D

ate.

Cou

rt o

f Arb

itrat

ion

for

Spor

t

Art.

11

CA

SMR

11. E

ither

par

ty o

r the

m

edia

tor m

ay te

rmin

ate

the

med

iatio

n at

any

tim

e. T

he

med

iatio

n sh

all b

e te

rmin

a-te

d:

a. b

y th

e sig

ning

of a

settl

e-m

ent b

y th

e pa

rties

; b.

by

a w

ritte

n de

clar

atio

n of

th

e m

edia

tor t

o th

e ef

fect

th

at fu

rther

effo

rts a

t med

ia-

tion

are

no lo

nger

wor

thw

hi-

le;

c. b

y a

writ

ten

decl

arat

ion

of

a pa

rty o

r the

par

ties t

o th

e ef

fect

that

the

med

iatio

n pr

ocee

ding

s are

term

inat

ed;

d. w

here

one

of t

he p

artie

s, or

bot

h, re

fuse

(s) t

o pa

y its

(th

eir)

shar

e of

the

med

iati-

on c

osts

with

in th

e tim

e lim

it fix

ed p

ursu

ant t

o A

rticl

e 14

of t

he R

ules

.

Marcel Woitalla

64

3.2.8.2. Comment

With regard to the termination of mediation by the parties, it has become apparent that SDSI285 and SRUK286, unlike CAS287 and SDRCC288, do not require a writ-ten declaration. In order to avoid ambiguity in terminating the procedure, there-fore, SDSI and SRUK are advised to set rules that require a written declaration by one of the parties at any time during the procedure in order to terminate the medi-ation.

Furthermore, it may prove useful for all providers to adopt a rule according to which the mediator (or the institution), upon receipt of a corresponding declara-tion of a party, determine in writing the termination of the mediation proce-dure.289 In this respect, a written declaration about the termination of the media-tion could avoid ambiguities with regard to the restarting of the limitation peri-od.290

In the context of the principle of self-determination, the setting of a time limit by the CAS in order to terminate the mediation is not problematic because the parties have the choice of simply paying their share of the mediation costs.

However, in the setting of a specific time limit for mediation, the same prob-lems may arise that Jung has mentioned in connection with short-term media-tion291: the principle of self-determination during the mediation can be limited through the definition of a specific timeframe. By setting a specific timetable for the mediation procedure, the mediator is likely to limit interventions by the par-ties during the procedure in order to adhere to the determined timetable.292 This risks that the mediator, rather than the parties, takes over the active part of the mediation process and thus becomes the director of the procedure.293 Such a restriction of the parties’ self-determination can be explained by the characteris-

__________ 285 Rule 41.1 (a) SDSIR. 286 § 9.3 (b) SRMP. 287 Art. 11 c. CASMR. 288 Art. 5.9 (d) CSDRC. 289 Cf. Schwarz, ZKM 2008, 116. 290 Cf. Schwarz, ZKM 2008, 116. 291 See Jung, Unter Zeitdruck: Die Kurzzeitmediation – was spart sie ein, und was spart sie aus?, ZKM 2013, 63f. 292 Cf. Jung, ZKM 2013, 64. 293 Cf. Jung, ZKM 2013, 64; according to Krabbe/Fritz the reference to the scarce resource time affects neither the self-responsibility nor the results openness of the parties, see Krabbe/Fritz, Werkstattbericht Kurz-Zeit-Mediation, ZKM 2013 ,76 (78).


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tics of sports. The fast pace of sports often requires quick solutions and also cre-ates a pressure to reach an agreement rapidly. Nevertheless, this fact should not be at the expense of the parties. From my perspective, the motto with regard to finding a solution should therefore be: “sustainability before speed.” A fast solu-tion is not always a sustainable solution. According to the underlying mediation understanding the way to a sustainable solution is only possible through the elab-oration of interests.

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4. Conclusions and Suggestions

The present thesis has dealt with the following research question: To what extent do institutional mediation regulations in the sports sector contain the principles of mediation?

The first Chapter demonstrated that some authors have already dealt with me-diation and sports, especially “the institutionalization of mediation in sports”, but, as far as can be seen, nobody has addressed the raised research question. In this context, only Blackshaw has ascertained that mediation services provided by sports bodies are a complete subject in their own right and worthy of further study.294

The second Chapter dealt with the measure of investigation that was necessary in order to be able to answer the raised research question. First, the researcher’s own understanding of mediation was presented. In summary, the definition of mediation according to the underlying understanding of mediation reads as fol-lows: mediation is a confidential and structured procedure in which the parties voluntarily and self-determinately, with the support of a multipartial third party who is not allowed to propose solutions and has no decision-making power (“the mediator”), strive for an amicable conflict resolution based on the parties’ needs and interests. Furthermore, the principles of mediation (i.e. voluntariness, self-determination, confidentiality, multipartiality, and focusing on interests) were discussed. In connection to the principle of focusing on interests, the five-phase model as the predominating mediation model in Germany was explained. Ac-cording to the five-phase model, the elaboration of interests in Phase 3 represents the so-called heart of mediation.

Finally, an overview of the bodies and institutions in the sports sector that have enacted mediation rules was given, showing that there are many different bodies and institutions in the field of sports that have integrated and enacted mediation rules in their statutes and codes in different ways.

The codes of the international sports federations contain only isolated rules re-garding mediation, which are individually tailored to the needs and interests of the respective federation. By contrast, the mediation procedure has been entirely

__________ 294 Blackshaw in Nafziger/Ross, Handbook on International Sports Law 82.


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regulated in the codes of CAS, SDSI, SDRCC, and SRUK, which has enabled comparability with regard to regulatory treatment of the principles.

The third Chapter centered on the principles of mediation and their regulatory treatment in the mediation codes of CAS, SDSI, SDRCC, and SRUK.

Firstly, the relationship between “principles” and “rules” was explained. A set of rules consists of both rules and principles. Rules are generally based on one or more principles. In this sense, principles can be contained explicitly and immedi-ately as well as implicitly and indirectly within a particular rule. Rules thus con-cretize one or more principles and thereby also serve in the observance and en-forcement of principles. It is also possible that a rule may contain several princi-ples; from this, a ranking of these principles within this particular rule can be derived. In order to answer the raised research question, it was necessary to ex-amine the regulatory treatment of the principles.

Furthermore, selected regulatory areas were formed by the author that allow comparability: the definition of mediation, participation, dealing with representa-tives, selection and role of the mediator, dealing with the principle of multipar-tiality, dealing with the principle of confidentiality, dealing with settlement and termination. In the following Chapter, it was examined to what extent these se-lected regulatory areas do contain the mediation principles.

First, it was examined whether the mediation definitions of the respective me-diation codes of CAS, SDSI, SDRCC, and SRUK contain the five aforemen-tioned principles. In summary, no mediation definition of the four examined codes explicitly contained all of the five principles. Therefore, it would be useful to include the principles explicitly in the definitions of the individual codes in order to emphasize their significance and importance in relation to the mediation procedure. The previously mentioned own definition can serve as an example.

In addition to the mediation definition, the other selected regulatory areas were also examined in each of the organizations. Regarding the raised research ques-tion, it may be stated that the principle of voluntariness is contained within all four investigated codes. The rules about the conclusion of a mediation agreement affect the principle of voluntariness, even if this principle is not explicitly men-tioned in the codes. Furthermore, all four examined codes provide for the termi-nation of mediation by a party without the need to provide a reason. This can be seen as an expression of the principle of voluntariness.

The principle of self-determination affects several of the examined regulatory areas.

Although the rules for dealing with representatives of the four providers differ with regard to the details of their concrete design, all providers allow the parties

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the opportunity to use a representative during the mediation procedure. This can be seen as a concretization and expression of the principle of self-determination.

Furthermore, all providers enable the parties the freedom to select a mediator based on their own agreement, which also can be seen as an expression of the principle of self-determination. In this context, the design of the rules differs from code to code. From my point of view, it would be interesting for further studies to examine the providers’ rules about the qualifications and requirements of the mediator.

Additionally, it was shown that the principle of self-determination is also con-tained within the rules regarding the conduct of the procedure.

The investigation of the regulatory treatment of the control of the procedure has shown that the various providers assess the relationship between the principle of self-determination and procedural control differently. According to the under-lying mediation understanding, however, the mediator has procedural control, while the parties retain responsibility for the content and results of the mediation. The procedural control of the mediator therefore must supplant the parties’ self-determination as regards the determination of the procedure. Furthermore, CAS and SDRCC are advised to modify their rules so that the procedural control lies exclusively with the mediator.

It has also been shown that the measure of self-determination is dependent on the “measure of solution activity.”295 In terms of the mediator’s influence on conflict solution, all providers have established different rules. This is remarkable because, in accordance with the underlying mediation understanding, the distinc-tion between mediation and conciliation depends on the extent of third-party-intervention. The different design of the third party's solution activity in the ex-amined codes again confirms that there is no uniform understanding of mediation in the international comparison. In this context, SRUK was the only provider to establish the rule that the mediator shall not at any time advise a party or offer an opinion296, which corresponds with the underlying understanding of mediation in this thesis. The view of the CAS and the SDSI do not correspond to the under-standing of mediation according to this thesis. They are advised to discuss about the advantages and disadavantages of proposing a solution by a mediator. A rule about dealing with proposing solutions by the mediator does not seem to be in-

__________ 295 Röthemeyer, ZKM 2013, 49. 296 § 3.3 SRMP.


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cluded in the regulations of the SDRCC. For the sake of clarity and transparency, the SDRCC should insert a rule about the mediator’s influence on conflict solu-tion in its code in order to define the attitude of the mediator’s approach.

As previously mentioned, the responsibility for results can be seen as an ex-pression of the principle of self-determination. By determining the lack of deci-sion-making authority of the mediator, CAS and SDSI have clarified in their codes that the parties are responsible for the results of the mediation.297 In order to enhance the mediator’s profile and to emphasize the responsibility for results as an expression of the self-determination of the parties, SDRCC and SRUK are advised to establish an appropriate rule in their codes.

Furthermore, the principle of focusing on interests is not explicitly mentioned in the examined codes.298 This principle is also contained in the predominating German mediation model and, moreover, characterizes the attitude of the media-tor according to the underlying understanding of mediation. The individual medi-ation codes do not presuppose a specific approach of the mediator with regard to the design of the procedure. Therefore, it is not surprising that both the principle of interest orientation and the five-phase model are not included in the individual codes. The providers are advised to consider whether to insert information about the mediator's approach, a specific phase model, or mediation style in their codes. This could positively influence the decision to choose a particular code and make the mediation process more transparent from the parties’ point of view. In addi-tion, mediation could be perceived less as an art form and more as a structured decision-making process.

With regard to the distinction between the two procedures of the SDRCC, res-olution facilitation and mediation, it has been noted that from the code itself as well as from the information of the website of the SDRCC, a clear separation or two procedures does not arise. This finding has raised further questions. First, the question arises as to how the two procedures differ and what relevance and added value the rules of resolution facilitation have. From the parties’ point of view, this raises the question of which criterion is decisive for the selection of one of the two procedures. Furthermore, from the point of view of the SDRCC, it is to be considered whether a merger of the rules of mediation and resolution facilitation

__________ 297 Art. 9 CASMR; Rule 43.2 SDSIR. 298 In this regard, Sandu's statement that CAS mediation has all of the characteristics of mediation can certainly be viewed critically, at least in terms of the principle of interest orientation, see Sandu, Conflict Studies Quarterly, Issue 11, April 2015, 62.

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makes sense. Of course, answering these questions would go beyond the scope of this research and be too far removed from the research question. Nevertheless, these questions show that such a difficulty of differentiation between mediation and resolution facilitation can have negative consequences in several areas. From the parties’ point of view, the choice of a suitable procedure is made more diffi-cult. Furthermore, the reputation of the SDRCC as an institution may suffer as well. Moreover, such handling of the terminology also damages ADR in general. In this respect, the SDRCC is advised to revise their resolution facilitation and mediation regulations and clearly define the profile of the resolution facilitator and the mediator in order to allow an explicit distinction between these procedur-al forms.

With regard to regulatory treatment in dealing with the principle of multipar-tiality, it has been noted that the principle of multipartiality is not mentioned explicitly in any of the examined codes. However, impartiality or/and independ-ence are contained in the rules of all providers. Furthermore, all providers have established rules in order to protect the principle of multipartiality. These rules indirectly contain the principle of multipartiality, but differ in design.

The principle of confidentiality is explicitly mentioned in all codes. Each of the four examined codes contains its own clause mentioning the principle of confidentiality and regulating the protection of confidentiality (e.g. rules about confidentiality obligations), but are varied with respect to the design. Notwith-standing, it would be useful to examine and compare some specific rules of the codes in a more detailed fashion (e.g. rules on confidentiality obligations or those dealing with statements of the mediator in other procedures).

The rules on ending mediation within a certain time frame make it clear that conflict resolution in sports often requires quick decisions and solutions. This also creates a pressure to reach an agreement rapidly. Nevertheless, this fact should not be at the expense of the parties. From my perspective, the motto with regard to finding a solution should therefore be: “sustainability before speed.” A fast solution is not always a sustainable solution. According to the underlying mediation understanding the way to a sustainable solution is only possible through the elaboration of interests. The mediator must consider this despite the setting of the time limit.

In summary, it can be stated that the individual providers have considered the individual principles to different degrees in their mediation codes. From a scien-tific point of view, this diversity of design possibilities is undoubtedly enriching, but should also be viewed critically: It should be noted that this also makes it more difficult to establish mediation as a serious ADR procedure, especially if


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each institution interprets the role of the mediator differently. In this respect, the existing bodies and institutions should ask themselves whether it makes sense to standardise mediation in sports at certain points, e.g. in the role description of the mediator.

Furthermore, the institutions do not make it sufficiently clear what advantages mediation offers over other procedures (e.g. arbitration), namely the activation of the parties’ self-responsibility, based on the assumption that no one can evaluate the elements that should be part of a conflict resolution better as well as the me-diation parties themselves. In order to establish mediation in sports-related dis-putes alongside arbitration, it would make sense to emphasise this purpose and advantage in comparison to arbitration, for example by presenting the role of the parties in mediation in a preamble.

But it can also be stated that all examined mediation codes have in common the following regulatory areas: the definition of mediation, participation, dealing with representatives, selection and role of the mediator, dealing with the principle of multipartiality, dealing with the principle of confidentiality, dealing with set-tlement and dealing with termination. In this respect, the examination of the individual regulatory areas, in particular their similarities and differences, can also be useful for a potential body or institution in designing its own code. The institutions in the sports sector are, therefore, recommended to design the above-mentioned regulatory areas according to their needs (and the needs of the media-tion parties). When designing and formulating these areas of regulation, they should always take into account how the principles of mediation can be imple-mented as far as possible. It needs to be clarified which understanding of media-tion should form the basis of the code, i.e. how mediation should be defined in the sense of the respective code, since this decision would influence the regulato-ry treatment of the principles. Therefore, an institution must, in my opinion, create rules which, on the one hand, contain flexible elements in order to give space to the individual needs and requirements of the mediation parties and to guarantee the principle of self-determination in the best possible way, and, on the other hand, insert immovable elements which serve the protection of the parties and mediation as a special method of conflict resolution.

In the course of the investigation of the individual areas of regulation, it has unfortunately not become clear to what extent the mediation rules from the sports sector differ from general mediation rules. To this end, it would be interesting to conduct a further investigation about the similarities and differences.

A primary goal of this investigation was to stimulate a discussion between the bodies and institutions in the field of sports regarding the handling of mediation

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principles and their regulatory treatment in their codes. In this respect, the identi-fied similarities and differences in the regulatory treatment of the principles may serve as a basis for such a discussion.


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List of Acronyms

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List of Acronyms

A

ADR Alternative Dispute Resolution ARSP Archiv für Rechts- und Sozialphilosophie / Archives

for Philosophy of Law and Social Philosophy Art. article ASA Amateur Swimming Association

B

BAFM Bundesarbeitsgemeinschaft für Familienmediation e.V.

C

CAS Court of Arbitration for Sport CASMR CAS Mediation Rules CEDR Centre for Effective Dispute Resolution cf. confer CSDRC Canadian Sport Dispute Resolution Code

D

DIS Deutsche Institution für Schiedsgerichtsbarkeit e.V. / The German Arbitration Institute

E

ECA European Club Association ed editor eds. editors e.g. for example Einl. Einleitung ESLJ Entertainment and Sports Law Journal e.V. eingetragener Verein

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F

f and the following ff and the following FIFA Fédération Internationale de Football Association fn. footnote

I

i.e. id est IHUK Ice Hockey UK IIHF International Ice Hockey Federation Inc. Incorporated

J

JAMS Judicial Arbitration and Mediation Services, Inc. JSI Just Sport Ireland JZ Juristenzeitung

M

MediationsG Mediationsgesetz / German Mediation Law m.n. margin number

N

No. Number NSOs National Sport Organizations

R

RW Rechtswissenschaft. Zeitschrift für rechtswissenschaft-liche Forschung

S

SDRCC Sport Dispute Resolution Centre of Canada SDRP Sports Resolution Dispute Resolution Panel SDSI Sport Dispute Solutions Ireland

List of Acronyms

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SDSIR Sport Dispute Solutions Ireland Rules SPARC Sport and Recreation New Zealand SRMP Sport Resolutions (UK) Mediation Procedure SRUK Sport Resolutions (UK)

U

UK United Kingdom

V

Vol. Volume

W

WBC World Boxing Council WIPO World Intellectual Property Organization

Z

ZKM Zeitschrift für Konfliktmanagement

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List of Tables

Table 1: Definition of Mediation ....................................................................... 28 Table 2: Participation ......................................................................................... 30 Table 3: Dealing with Representatives .............................................................. 34 Table 4: Selection of the Mediator .................................................................... 37 Table 5: Conduct of the Procedure ................................................................... 41 Table 6: Mediator’s Influence on Conflict Solution ......................................... 46 Table 7: Dealing with the Principle of Multipartiality .................................... 50 Table 8: Dealing with the Principle of Confidentiality .................................... 54 Table 9: Dealing with the Principle of Confidentiality .................................... 55 Table 10: Dealing with the Settlement .............................................................. 59 Table 11: Termination ........................................................................................ 63

Appendices – Documentation

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Appendix 1 - CAS Mediation Rules .................................................................... 84 Appendix 2 - SDSI RULES ................................................................................. 90 Appendix 3 - Canadian Sport Dispute Resolution Code ...................................... 96 Appendix 4 - Sport Resolutions (UK) Mediation Procedure ............................. 102

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Appendix 1 - CAS Mediation Rules

(in force as from 1 September 2013; amended on 1 January 2016) Pursuant to Articles S2 and S6 paragraphs 1 and 10 of the Code of Sports-related Arbitration, the International Council of Arbitration for Sport adopts the present Mediation Rules (the “Rules”). A. DEFINITIONS Article 1 CAS mediation is a non-binding and informal procedure, based on an agreement to mediate in which each party undertakes to attempt in good faith to negotiate with the other party with a view to settling a sports-related dispute. The parties are assisted in their negotiations by a CAS mediator. In principle, CAS mediation is provided for the resolution of contractual disputes. Disputes related to disciplinary matters, such as doping issues, match-fixing and corruption, are excluded from CAS mediation. However, in certain cases, where the circumstances so require and the parties expressly agree, disputes related to disciplinary matters may be submitted to CAS mediation. Article 2 A mediation agreement is one whereby the parties agree to submit to mediation a sports-related dispute which has arisen or which may arise between them. A mediation agreement may take the form of a mediation clause in a contract or a separate agreement. B. SCOPE OF APPLICATION OF RULES Article 3 Where a mediation agreement provides for mediation under the CAS Mediation Rules, these Rules shall be deemed to form an integral part of such mediation agreement. Unless the parties have agreed otherwise, the version of these Rules in force on the date when the mediation request is filed shall apply. The parties may however agree to apply other rules of procedure. C. COMMENCEMENT OF THE MEDIATION Article 4


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A party wishing to institute mediation proceedings shall address a request to that effect in writing to the CAS Court Office. The request shall contain: the identity of the parties and their representatives (name, address, email address, telephone and fax numbers), a copy of the media-tion agreement and a brief description of the dispute. The day on which the mediation request is received by the CAS Court Office shall be considered as the date on which the mediation proceedings commence. The CAS Court Office shall immediately inform the parties of the date on which the mediation commences, and shall fix the time limit by which the parties shall pay their share of the administrative costs and the advance of costs pursuant to Article 14 and Appendix I of the Rules. If the parties agree to submit an ordinary / appeal arbitration procedure to media-tion, the CHF 1,000 (one thousand Swiss francs) Court Office fee paid by the Claimant / Appellant in the arbitration procedure shall be credited to the media-tion procedure and used to cover the administrative costs for the mediation. If the advance of costs is not paid by both parties and if one party does not agree to pay the share of the other party (-ies), the mediation procedure is immediately terminated. D. APPOINTMENT OF THE MEDIATOR Article 5 The ICAS draws up the list of mediators available to be appointed in CAS media-tion procedures. The personalities whom the ICAS appoints appear on the list of mediators for a four-year period, and are thereafter eligible for reselection. Article 6 Unless the parties have jointly selected a mediator from the list of CAS media-tors, the mediator shall be appointed by the CAS President, after consultation with the parties, from among the list of CAS mediators. In accepting such appointment, the mediator undertakes to devote sufficient time to the mediation proceedings to permit them to be conducted expeditiously. The mediator shall be and must remain impartial, and independent of the parties, and shall disclose any facts or circumstances which might be of such nature as to call into question her/his independence in the eyes of any of the parties. Notwith-standing any such disclosure, the parties may agree in writing to authorize the mediator to continue his mandate.

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In the event of an objection by any of the parties, or at her/his own discretion if she/he deems herself/himself unable to bring the mediation to a successful con-clusion, the mediator shall cease her/his mandate and inform the CAS President accordingly, whereupon the latter will make arrangements to replace her/him, after consulting the parties and offering them the possibility to appoint another CAS mediator. E. REPRESENTATION OF PARTIES Article 7 The parties may be represented or assisted in their meetings with the mediator. If a party is being represented, the other party, the mediator and the CAS must be informed beforehand as to the identity of such representative. The representative must have full written authority to settle the dispute alone, without needing to consult the party she/he is representing. F. CONDUCT OF MEDIATION Article 8 Unless the parties have agreed to conduct the mediation in a particular manner, the mediator shall determine how the mediation will proceed, after consultation with the parties and taking due consideration of the CAS Mediation Guidelines. Upon her/his appointment, the mediator shall establish the terms and timetable for submission by each party of a statement summarizing the dispute, including the following details: - a brief description of the facts and points of law, including a list of the issues submitted to the mediator with a view to resolution; - a copy of the mediation agreement. Where the parties agree to submit an ordinary / appeal arbitration case to media-tion, the mediator may consider the request for arbitration / statement of appeal as one party’s summary of its dispute and may invite only the other party to submit its summary of the dispute. Each party shall cooperate in good faith with the mediator and shall guarantee her/him the freedom to perform her/his mandate to advance the mediation as expeditiously as possible. The mediator may make any suggestions she/he deems appropriate in this regard. The mediator may at any time communicate separately with the parties if she/he deems it necessary to do so.


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G. ROLE OF THE MEDIATOR Article 9 The mediator shall promote the settlement of the issues in dispute in any manner that she/he believes to be appropriate. To achieve this, the mediator will: a. identify the issues in dispute; b. facilitate discussion of the issues by the parties; c. propose solutions. However, the mediator may not impose a solution of the dispute on either party. H. CONFIDENTIALITY Article 10 The mediator, the parties, their representatives and advisers, and any other person present during the meetings between the parties shall sign a confidentiality agreement and shall not disclose to any third party any information given to them during the mediation, unless required by law to do so. Unless required to do so by applicable law and in the absence of any agreement of the parties to the contrary, a party shall not compel the mediator to divulge records, reports or other documents, or to testify in regard to the mediation in any arbitral or judicial proceedings. Any information given by one party may be disclosed by the mediator to the other party only with the consent of the former. But for personal notes of the Mediator or the Parties, no record of any kind such as audio or video recording, transcript or minutes shall be made of the meetings. Unless required to do so by applicable law and in the absence of any agreement of the parties to the contrary, the parties shall not rely on, or introduce as evi-dence in any arbitral or judicial proceedings: a. views expressed or suggestions made by a party with respect to a possible settlement of the dispute; b. admissions made by a party in the course of the mediation proceedings; c. documents, notes or other information obtained during the mediation proceed-ings; d. proposals made or views expressed by the mediator; or e. the fact that a party had or had not indicated willingness to accept a proposal. I. TERMINATION

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Article 11 Either party or the mediator may terminate the mediation at any time. The mediation shall be terminated: a. by the signing of a settlement by the parties; b. by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; c. by a written declaration of a party or the parties to the effect that the mediation proceedings are terminated; d. where one of the parties, or both, refuse(s) to pay its (their) share of the media-tion costs within the time limit fixed pursuant to Article 14 of the Rules. J. SETTLEMENT Article 12 The settlement is drawn up by the mediator and signed by the parties and the mediator. Each party shall receive a copy thereof. In the event of any breach, a party may rely on such copy before an arbitral or judicial authority. In the event of any breach, the parties may agree that the case be resolved by CAS arbitration, in accordance with the Code of Sports-related Arbitration. A copy of the settlement is submitted for inclusion in the records of the CAS Court Office. K. FAILURE TO SETTLE Article 13 The parties may have recourse to arbitration when a dispute has not been resolved by mediation, provided that an arbitration agreement or clause exists between the parties. The arbitration clause may be included in the mediation agreement. In such a case, the expedited procedure provided for under article R44, paragraph 4 of the Code of Sports-related Arbitration may be applied. In the event of a failure to resolve a dispute by mediation, the mediator shall not accept an appointment as an arbitrator in any arbitral proceedings concerning the parties involved in the same dispute. However, if all parties have explicitly agreed so in writing once the mediation procedure is terminated, it is possible for the mediator to subsequently act as arbitrator for the same dispute and issue an arbitral award in accordance with the CAS Arbitration Rules (“Med- Arb proce-


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dure”). Such mediator can only act as an arbitrator if she/he is also on the list of CAS Arbitrators. L. COSTS Article 14 Each party shall pay the CAS administrative costs within the time limit provided in Article 4 of the Rules. In the absence of such payment, the mediation proceed-ings will not be initiated. The parties shall pay their own mediation fees and expenses. Unless otherwise agreed between the parties, the final costs of the mediation, which include the CAS administrative costs of CHF 1,000, the costs and fees of the mediator calculated on the basis of the CAS fee scale set out in Appendix I, and a contribution towards the CAS expenses will be borne by the parties in equal shares. At the outset of the mediation proceedings, the CAS Court Office shall require the parties to deposit an equal amount as an advance towards the costs of the mediation. At the conclusion of the mediation, any portion of the advance of costs which is not used, shall be reimbursed to the parties in equal shares or in the proportion in which the parties paid the advance of costs.

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Appendix 2 - SDSI RULES

including Arbitration and Mediation rules PART 4 - MEDIATION Part 4 of these rules details how SDSI Mediation is to be conducted and the Par-ties shall be taken to have agreed that the mediation shall be conducted in accord-ance with the Mediation Procedure. 33. WHAT IS SDSI MEDIATION? 33.1 SDSI mediation is a flexible process in which each party to a dispute (the “Party”) undertakes to attempt to negotiate a settlement in good faith with the other Party, with the assistance of an independent third party (the “Mediator”). 34. ROLE OF SDSI IN MEDIATION 34.1 The role of SDSI in Mediation is to appoint the Mediator and thereafter in conjunction with the Mediator to make the necessary arrangements in respect of and for the mediation including as required; (i) Organising suitable venue and dates; (ii) Organising the exchange of the Summaries and Documents (iii) Meeting with any or all of the representatives of both Parties (and the Media-tor if he/she has been appointed) either together or separately, to discuss any matters or concerns relating to the mediation; (iv) General administration in relation to the mediation including post-mediation follow up. 35. ABILITY TO USE SDSI MEDIATION 35.1 In order to initiate mediation with SDSI mediation there must be an agree-ment between the Parties to submit to mediation a sports-related dispute. This agreement may take the form of: (i) A clause inserted into a contract, (ii) A mediation clause contained in the statutes or regulations of a sports-related body, or (iii) A separate mediation agreement the entry into which can be facilitated by SDSI if required. 36. HOW A SDSI MEDIATOR IS APPOINTED


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36.1 The Parties will agree a Mediator from the List of Mediators maintained by SDSI. If they cannot agree as to who should be appointed, the Mediator shall be appointed by the Secretariat. 36.2 SDSI shall seek to appoint a Mediator within seven (7) days of an agreement to mediate being established between the Parties. 36.3 An assistant Mediator may accompany the Mediator. The Assistant is pre-sent to gain experience and assist the Mediator as appropriate and attends without cost to the Parties. All references to Mediator in these Rules also apply to the Assistant Mediator. 37. DUTIES OF A MEDIATOR 37.1 By accepting his/her appointment, the Mediator undertakes to devote suffi-cient time to the mediation process as will allow it to be conducted expeditiously and will: (i) Attend any meetings with any or all of the parties preceding the mediation, if requested or if the mediator decides this is appropriate; (ii) Read before the mediation each Case Summary and all the Documents sent to him/or her in accordance with these rules. (iii) Determine the procedure; (iv) Assist the Parties in drawing up any written settlement agreement if required; (v) Abide by the terms of the Mediation Procedure, the Mediation Agreement and the SDSI Code of Conduct for Arbitrator’s and Mediators as may be amended from time to time. 37.2 The Mediator shall be and must remain independent of the Parties, and is bound to disclose, both to SDSI and to the Parties, any circumstances likely to compromise his/her independence with respect to any of the Parties, or any other matter of which the Mediator is aware which could be regarded as involving a conflict of interest (whether apparent, potential or actual) in the mediation. 38. OBJECTING TO A MEDIATOR 38.1 If a Party raises an objection to the Mediator, if the Mediator discloses a potential conflict of interest, or if the Mediator indicates that he/she is unable to act, the Secretariat may replace the Mediator, after consultation with the Parties. 38.2 The Parties shall not initiate, during the mediation process, any arbitral or judicial proceedings in respect of the dispute, except that a Party may initiate arbitral or judicial proceedings when the initiation of such proceedings is neces-sary in order to preserve its rights in the event that the mediation is unsuccessful.

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39. HOW A SDSI MEDIATION IS CONDUCTED 39.1 The Parties, the Mediator and JSI wishing to proceed with JSI Mediation will enter into an agreement based on the JSI Standard “Mediation Agreement”, as amended from time to time, which sets out how the mediation will be conduct-ed including but not limited to the following: (a) the terms and timetable for each Party to submit simultaneously (through the Secretariat), to the Mediator and to the other Party; (i) A statement summarising its case in the Dispute, (collectively referred to as the “Case Summary”); and (ii) Copies of all documents to which it refers in the Summary and to which it may want to refer to in the mediation (the “Documents”). Provided always that any Party may submit further documentation to the Media-tor (through the Secretariat), which it wishes to disclose in confidence to the Mediator but not to any other Party, clearly stating in writing that such documen-tation is confidential to the Mediator and to the Secretariat; (b) the maximum number of pages of each Summary; (c) the Parties availability to attend at Mediation; and (d) the preferred location of the Mediation. The SDSI Standard Mediation Agreement is available for download from the SDSI website or can be obtained from the SDSI Secretariat on request. 39.2 The Parties together with the appointed Mediator shall be obliged to enter into the Mediation Agreement within (7) seven days of the appointment of the Mediator or the Mediation will be held to be at an end. 39.3 The date of receipt by SDSI of the signed Mediation Agreement shall be the date the mediation commenced (the “Commencement Date”). 40. RECOMMENDATIONS 40.1 If requested by all Parties in writing, the Mediator may make oral or written recommendations concerning an appropriate resolution of the dispute. Otherwise, the Mediator will not at any time advise a party or offer an opinion. 41. ENDING OF A MEDIATION 41.1 The mediation will be considered to be over when: (a) A Party withdraws from the mediation; or (b) The Mediator, at his/her discretion, withdraws from the mediation in writing; or (c) A written settlement agreement is concluded between the Parties.


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41.2 The Secretariat shall have the power to declare a Mediation over where no written settlement agreement is in place between the Parties within thirty (30) days of the Commencement Date. 42. ADJOURNMENT 42.1 The Mediator may adjourn the mediation in order to allow the Parties to consider specific proposals, acquire information or for any other reason that the Mediator considers helpful in furthering the mediation process. The Mediator will reconvene the mediation after consultation with the Parties. 43. AGREEING A SETTLEMENT 43.1 Any settlement reached in the mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the Parties. 43.2 The Mediator does not have the authority to impose a settlement on the Parties. 43.3 The settlement agreement may be drawn up by, or with the assistance of, the Mediator, or by the Parties and shall be signed by the Mediator and the Parties. A copy of the settlement agreement shall be provided to SDSI and to each Party. In the event of any breach of the settlement agreement, a Party may rely on such copy before an arbitral or judicial authority. 44. POST-MEDIATION CONDUCT OF A MEDIATOR 44.1 The Mediator may not act as an arbitrator or as a representative of, or coun-sel to, a Party in any arbitral or judicial proceedings relating to the Dispute. 45. GENERAL RULES 45.1 General Rules relating may be found at Part 6 of these Rules and shall apply to Arbitrations. Additional Rules 58. REPRESENTATION 58.1 The Parties may be represented or assisted by persons of their choice. 58.2 If a Party is being represented, it shall inform SDSI and the other Party of the identity of such representative at the earliest opportunity. 58.3 Parties may be represented at a hearing by a third party, but should appear personally where requested to do so.

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59. CONFIDENTIALITY 59.1 All proceedings with SDSI shall be confidential. The Parties, their repre-sentatives, experts, witnesses, the Arbitration Panel and or Mediator and the Secretariat or any other person(s) involved in the proceedings may not disclose to any third party any information given to them during the proceeding. All infor-mation and documents provided to SDSI in connections in the proceedings shall be confidential save where disclosure of the information may be required by law, to pursue or protect a legal right, to enforce or challenge an award in bona fide legal proceedings or where such documents may already be in the public domain (otherwise than in breach of this undertaking). 59.2 Notwithstanding 59.1 above: (i) JSI may publish the Arbitration Panel’s publish generic, non-identifying in-formation relating to that arbitration to include the decision and its reasons unless the Parties expressly agree prior to the Arbitration Panel making its decision that they should remain confidential. (ii) In respect of all Mediations the Parties shall not: (a) Compel the Mediator, or any officer or employee of SDSI, to divulge infor-mation or documents or to testify or give evidence in regard to the mediation, in any adversary proceeding or judicial forum. (b) Rely upon, or introduce as evidence in any arbitral, judicial or other proceed-ing, documents or information obtained during the mediation process; views expressed or suggestions or proposals made by a Party or the Mediator in the course of the mediation process; or admissions made by a Party in the course of the mediation process; or the fact that a Party had or had not indicated a willing-ness to accept a proposal made by another Party or by the Mediator. 59.3 The requirement to confidentiality shall not apply if, and to the extent that: (i) All Parties consent to a disclosure; or (ii) The Arbitrator/Mediator is required by law to make disclosure; or (iii) The Arbitrator/Mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or (iv) The Arbitrator/Mediator reasonably considers that there is a serious risk of his/her being subject to criminal proceedings unless the information in question is disclosed. The above provisions relating to privacy and confidentiality are subject always, to the ability of the Secretariat, where the proceedings are taking place under the rules, regulations or direction of a third party but the third party is not directly


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involved in the proceedings, to update that third party of the stage at which the proceedings are at without disclosing any of the substance of those proceedings.

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Appendix 3 - Canadian Sport Dispute Resolution Code

January 1, 2015 Article 5 Mediation 5.1 General (a) The term “Mediation” used in this Code includes a Mediation process and the Mediation portion of the Med/Arb, and the term “Mediator” includes a Med/Arb Neutral acting as a Mediator. (b) Mediation under the provisions of this Article is a non-binding and informal procedure, in which each Party undertakes in good faith to negotiate with all other Parties, with the assistance of a Mediator, with a view to settling a Sports-Related Dispute. 5.2 Application of Mediation Rules Where an agreement provides for Mediation under this Code, the rules set forth in this Article shall be deemed to form an integral part of such Mediation agree-ment. Unless the Parties agree otherwise, the version of these Mediation rules in force on the date when the Request is filed shall apply. The Parties may, howev-er, agree to apply other rules of procedure. The Parties shall sign a Mediation agreement, the form of which will be provided by the SDRCC unless they have agreed to a different form of agreement. 5.3 Commencement of the Mediation The Mediation shall be commenced: (a) when a Request filed in accordance with Section 3.4 hereof states that the Claimant would like to attempt Mediation, and where the Answer states that the Respondent agrees to proceed by way of Mediation; or (b) where the Parties agree, after the filing of a Request and Answer, to proceed by way of Mediation. 5.4 Selection of Mediator Unless the Parties have agreed between themselves on a Mediator, the SDRCC will provide them a list of three (3) Mediators selected on a rotational basis. The Parties shall choose a Mediator from the list provided. If the Parties do not agree on a Mediator within the time limit set by the SDRCC, the SDRCC shall appoint the Mediator on a rotational basis.


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5.5 Authority to Settle The Persons present at the Mediation must have full authority to settle the Sports-Related Dispute without consulting anyone who is not present. 5.6 Conduct of Mediation (a) The Mediation shall be conducted in the manner agreed by the Parties. Failing such agreement between the Parties, the Mediator shall determine the manner in which the Mediation will be conducted. (b) Each Party shall cooperate in good faith with the Mediator. (c) The Mediator shall devote sufficient time to the Mediation proceedings to allow it to be conducted expeditiously. 5.7 Confidentiality of Mediation Process (a) The meetings between the Mediator and the Parties shall be confidential and without prejudice. (b) The Mediator, the Parties, their representatives and advisors, the experts and any other Persons present during the Mediation shall not disclose to any third party any information or document given to them during the Mediation, unless required by law to do so. (c) The Mediator may not be called as a witness and the Parties undertake not to compel the Mediator to divulge records, reports or other documents, or to testify in regard to the Mediation in any arbitral or judicial proceedings, including pro-ceedings before the SDRCC, unless required by law to do so. (d) All written and oral statements and settlement discussions made in the course of Mediation will be treated as having been made without prejudice, and cannot be disclosed to a Panel except after a decision has been rendered, and then, only with respect to the issue of costs. 5.8 Time Limit of Mediation Upon commencing a Mediation, the Parties and the Mediator will agree upon a time when the Mediation proceeding will terminate. In the event that the Parties cannot agree on a time limit for the Mediation, the Mediator will set a time limit, considering the date by which the Sports-Related Dispute must be resolved and the amount of time that would reasonably be required to resolve the Sports-Related Dispute should it go to Arbitration. 5.9 Termination of Mediation

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The Mediation shall be terminated on the first of the following events to occur: (a) the signing of a settlement agreement by the Parties; (b) a written declaration by the Mediator to the effect that further efforts at Medi-ation are no longer worthwhile; (c) a resignation by the Mediator for other reasons; (d) a written notice by either the Claimant or the Respondent terminating the Mediation; or (e) the expiry of the time limit established pursuant to Section 5.8 hereof. 5.10 Settlement If the Parties settle at the Mediation, a document evidencing the terms of the settlement should be prepared and signed by the Parties. A copy of the settlement agreement shall be submitted to the SDRCC. 5.11 No Settlement In the event of a failure to resolve a Sports-Related Dispute by Mediation, the Mediator shall not accept an appointment as an Arbitrator in any arbitral proceed-ings concerning the Parties involved in the same dispute unless a Med/Arb agreement has been signed by the Parties, or unless all Parties (including any Affected Parties) otherwise consent in writing. If the Parties do not settle at Me-diation, they shall continue on to Arbitration pursuant to this Code unless other-wise agreed by the Parties in writing. 5.12 Costs of Mediation Except for the costs outlined in Subsection 3.9(e) and Section 3.10 hereof, the Parties will pay their own costs for the Mediation, including costs of representa-tives. Additional Rules 2.1 Administration (a) The SDRCC administers this Code to resolve Sports-Related Disputes. (b) Subject to Subsection 2.1(c) hereof, this Code applies to a Sports-Related Dispute where the SDRCC has jurisdiction to resolve the dispute. This Code will therefore apply to any Sports-Related Dispute: (i) in relation to which a Mediation, Arbitration or Med/Arb agreement exists between the Parties to bring the dispute to the SDRCC; (ii) that the Parties are required to resolve through the SDRCC; or


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(iii) that the Parties and the SDRCC agree to have resolved using this Code. (c) This Code shall not apply to any dispute that a Panel determines, in its discre-tion, is not appropriate to bring before the SDRCC or to a dispute where the Panel determines that the SDRCC does not have jurisdiction to deal with the dispute. 3.2 Mediators, Arbitrators and Med/Arb Neutrals (a) To assist in the resolution of Sports-Related Disputes, the SDRCC will estab-lish and maintain lists of Mediators, Arbitrators and Med/Arb Neutrals. The lists and all modifications thereto shall be published by the SDRCC. The name of an individual may appear on more than one list. (b) In establishing the lists of Mediators, Arbitrators or Med/Arb Neutrals, the SDRCC shall: (i) designate individuals with appropriate training who possess recognized com-petence with regard to sport and alternative dispute resolution procedure and have the requisite experience in conducting such matters; and (ii) whenever possible, ensure fair representation of the different regions, cul-tures, genders and bilingual character of the Canadian society. (c) Upon their appointment to the relevant list, the Mediators, Arbitrators and Med/Arb Neutrals shall sign a declaration undertaking to exercise their functions personally with impartiality and in conformity with the provisions of this Code and, when applicable, shall also disclose any reasons that could affect their ability to appear on the rotating list of the SDRCC as described under Subsection 6.8(d) hereof. (d) Upon being appointed to deal with a particular Sports-Related Dispute, all Mediators, Arbitrators and Med/Arb Neutrals shall immediately disclose to the Parties and the SDRCC any conflict or potential conflict of interest and any cir-cumstances that could create a reasonable apprehension of bias in respect of their appointment. 3.3 Other Proceedings Mediators, Arbitrators, Med/Arb Neutrals, members of the Board of Directors of the SDRCC and staff of the SDRCC are not compellable witnesses in any court or administrative proceeding, including other SDRCC proceedings, and none of the Parties may attempt to subpoena or demand the production of any notes, records or documents prepared by the SDRCC in the course of the Mediation, Arbitration or Med/Arb. 3.11 Representation and Assistance

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(a) The Parties have a right to counsel at all SDRCC proceedings and may be represented or assisted by Persons of their choice at their own expense. The names, addresses, telephone and facsimile numbers, and email addresses of the representatives of the Parties shall be communicated to all other Parties and to the SDRCC. (b) Minors involved in SDRCC proceedings shall be represented by a parent or by a legal guardian. Subject to Subsection 3.11(a) hereof, the parent or legal guardian may authorize another adult to represent or speak on behalf of the Mi-nor. 4.1 Resolution Facilitation (a) Resolution Facilitation is a simple and informal process offered to Parties to a Sports-Related Dispute whereby a Resolution Facilitator (RF) appointed by the SDRCC works with Parties towards an agreement, focusing on effective commu-nication and the interests of the Parties. (b) The RF can also help Parties better understand the other options available from the SDRCC to help resolve the dispute. (c) The Parties work with the RF to attempt to resolve the dispute until one of the Parties terminates the Resolution Facilitation process or if the RF determines that further discussions are unlikely to lead to a resolution. 4.3 Mandatory Resolution Facilitation in Arbitration (a) Resolution Facilitation is mandatory where Parties to a Sports-Related Dis-pute request Arbitration. (b) The Parties must be prepared to spend at least three (3) hours with the RF. The Parties must, in an attempt to resolve the dispute, spend the aforementioned time with the RF prior to the date scheduled for an Arbitration. The Parties will continue to work with the RF to attempt to resolve the dispute until one of the Parties terminates the process (if that Party has spent more than three (3) hours with the RF) or if the RF determines that further discussions are unlikely to lead to a resolution. (c) If a Party in an Arbitration refuses to spend the aforementioned time with the RF or is so inadequately prepared as to frustrate the purpose of the Resolution Facilitation, the Panel may award costs against such Party pursuant to Section 6.22 hereof. (d) The RF process should not delay the Arbitration. The Parties may continue with the process of appointing a Panel while the RF is assisting them to resolve the dispute.


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(e) Where the Parties do not have adequate time to schedule meetings with the RF prior to an Arbitration (due to severe time constraints), the Parties may jointly apply to the SDRCC to waive the requirement to participate with the RF in set-tlement discussions. Upon receipt of such application, the SDRCC may in its discretion waive the requirement to participate in the RF process. (f) The RF may provide the Parties with a written opinion of the likely outcome of an Arbitration of the dispute, or of any findings under 4.3(c). The opinion of the RF will not be communicated to the Panel until a decision is rendered by the Panel. Following the rendering of a decision, the RF’s opinion may be communi-cated to the Panel regarding any submission made with respect to the costs of the Arbitration. (g) When Resolution Facilitation does not resolve the dispute, Parties may con-tinue to work with the RF in preparation for the Arbitration, such as developing an agreed statement of facts or narrowing the questions upon which the Panel will decide.

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Appendix 4 - Sport Resolutions (UK) Mediation Procedure

The following procedure (“the Mediation Procedure”) (as amended by Sport Resolutions (UK) from time to time) shall govern the mediation of any dispute and the Parties shall be taken to have agreed that the mediation shall be conduct-ed in accordance with the Mediation Procedure. 1. Mediation Procedure 1.1 Mediation is, in general terms, a negotiation assisted by an independent third party (“the Mediator”). The process is flexible and determined by the Mediator in consultation with the Parties and normally comprises a series of confidential joint and private meetings. Except as noted in clause 11 all communications relating to, and at, the mediation are confidential and without prejudice. 1.2 The representatives of the Parties must have the necessary authority to settle the dispute. 2. Mediation Agreement 2.1 The Parties, the Mediator and Sport Resolutions (UK) will enter into an agreement based on Sport Resolutions (UK) Mediation Agreement (“the Media-tion Agreement”). 3. The Mediator 3.1 The Parties will agree a Mediator from the list of mediators provided by Sport Resolutions (UK). If they cannot agree as to who should be appointed, the Media-tor shall be appointed by the Executive Director of Sport Resolutions (UK). 3.2 The Mediator will: (a) attend any meetings with any or all of the parties preceding the mediation, if requested or if the mediator decides this is appropriate; (b) read before the mediation each Summary and all the Documents sent to him/her in accordance with paragraphs 6.1 and 6.2 below; (c) determine the procedure (see paragraph 1.1 above); (d) assist the Parties in drawing up any written settlement agreement; (e) abide by the terms of the Mediation Procedure, the Mediation Agreement and any Code of Conduct adopted from time to time (“the Code of Conduct). 3.3 The Mediator will not at any time advise a party or offer an opinion. The Mediator’s independence and impartiality is to be maintained throughout the Mediation.


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3.4 The Mediator and any member of a firm or company associated with the Mediator will not act for any of the Parties individually in connection with the dispute in any capacity during the currency of the Mediation Agreement. 3.5 The Parties accept that in relation to the dispute neither the Mediator nor Sport Resolutions (UK) is an agent of, or acting in any capacity for, any of the Parties. The Parties and the Mediator accept that the Mediator is acting as an independent contractor and not as agent or employee of Sport Resolutions (UK). 3.6 None of the Parties to the Mediation Agreement will call the Mediator or Sport Resolutions (UK) (or any employee, consultant, officer or representative of Sport Resolutions (UK)) as a witness, consultant, arbitrator or expert in any liti-gation or arbitration in relation to the dispute, nor require him/her/them to pro-duce in evidence any record or notes relating to the mediation in any litigation, arbitration or other formal process arising from or in connection with the dispute and the mediation. The Mediator and Sport Resolutions (UK) will not act or agree to act as a witness, consultant, arbitrator or expert in any such process. 3.7 An Assistant Mediator may accompany the Mediator. The Assistant is present to gain experience and assist the Mediator as appropriate and attends without cost to the Parties. All references to ‘Mediator’ in this Procedure also apply to the Assistant Mediator. 4. Sport Resolutions (UK) 4.1 Sport Resolutions (UK), in conjunction with the Mediator, will make the necessary arrangements for the mediation including, as necessary: a) assisting the Parties in appointing the Mediator and in drawing up the Media-tion Agreement; b) organising a suitable venue and dates; c) organising exchange of the Summaries and Documents; d) meeting with any or all of the representatives of both Parties (and the Mediator if he/she has been appointed) either together or separately, to discuss any matters or concerns relating to the mediation; e) general administration in relation to the mediation including post-mediation follow-up. 5. Other Participants 5.1 Each Party will notify the other Party or Parties, through Sport Resolutions (UK), of the names of those people that it intends will be present on its behalf at the mediation.

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6. Exchange of Information 6.1 Each Party will, simultaneously through Sport Resolutions (UK), exchange with the other and send to the Mediator at least two weeks before the mediation or such other date as may be agreed between the Parties: (a) a concise summary (“the Summary”) stating its case in the dispute; (b) copies of all key documents to which it refers in the Summary and to which it may want to refer in the mediation (“the Documents”). 6.2 In addition, each Party may send to the Mediator (through Sport Resolutions (UK)) and/or bring to the mediation further documentation which it wishes to disclose in confidence to the Mediator but not to any other Party, clearly stating in writing that such documentation is confidential to the Mediator and Sport Resolutions (UK). 6.3 The Parties will, through Sport Resolutions (UK), agree the maximum num-ber of pages of each Summary and of the Documents and try to agree a joint set of documents from their respective Documents. 7. Records 7.1 No formal record or transcript of the mediation will be made. 8. Settlement 8.1 Any settlement reached in the mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the parties. 9. Law and Jurisdiction 9.1 Except where the parties have otherwise agreed, this Agreement shall be governed by, be construed and take effect in accordance with English law, and the courts of England and Wales shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with the mediation. 9.2 The referral of the dispute to mediation does not affect any rights that may exist under Article 6 of the European Convention on Human Rights. If the dis-pute is not settled by mediation, the Parties rights to a fair trial are unaffected. 9.3 The mediation will terminate when: (a) a written Settlement Agreement is concluded; or (b) a Party withdraws from the mediation; or (c) the Mediator decides to retire where he/she deems it to be professional to do so.


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10. Proceedings 10.1 Any litigation or arbitration in relation to the dispute may be commenced or continued notwithstanding the mediation unless the Parties agree otherwise. 11. Confidentiality 11.1 Every person involved in the mediation will keep confidential and not use for any collateral or ulterior purpose all information, (whether given orally, in writing or otherwise), produced for, or arising in relation to, the mediation includ-ing the Settlement Agreement (if any) arising out of it except insofar as is neces-sary to implement and enforce any such Settlement Agreement. 11.2 All documents (which include anything upon which evidence is recorded including tapes and computer discs) or other information produced for, or arising in relation to, the mediation will be privileged and not be admissible as evidence or discoverable in any litigation or arbitration connected with the dispute except any documents or other information which would in any event have been admis-sible or discoverable in any such litigation or arbitration. 12. Fees, Expenses and Costs 12.1 Unless otherwise agreed, Sport Resolutions (UK)’s fees (which include the Mediator’s fees) and the other expenses of the mediation will be borne equally by the Parties. Payment of these fees and expenses will be made to Sport Resolu-tions (UK) in accordance with its Fee Schedule and Terms of Business. 12.2 Unless otherwise agreed, each Party will bear its own costs and expenses of its participation in the mediation.

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Marcel Woitalla

Über den Autor

Marcel Woitalla, geboren am 05.09.1989 in Wiesbaden, ist derzeit Rechtsrefe-rendar am Landgericht Dresden. Nach dem Studium der Rechtswissenschaften an der Johann Wolfgang Goethe-Universität in Frankfurt am Main und der Westfälischen Wilhelms-Universität in Münster und dem erfolgreichen Abschluss des Ersten Juristischen Staatsexamens promovierte er an der Leopold-Franzens-Universität in Innsbruck über ein sport-rechtliches Thema. Neben der Bearbeitung rechtlicher Fragestellungen interes-siert sich Herr Woitalla auch für sämtliche Formen der außergerichtlichen Kon-fliktlösung. Aus diesem Grund nahm er während seiner Promotion am Master-Studiengang „Mediation und Konfliktmanagement“ an der Europa-Universität Viadrina in Frankfurt (Oder) teil. Im Rahmen der Erstellung seiner englischspra-chigen Masterarbeit, in der er sich schwerpunktmäßig mit Mediationsordnungen aus dem Sportbereich befasste, gelang es ihm die drei Themenfelder Mediation, Sport und Recht miteinander zu verknüpfen.

Date post:	25-May-2020
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