Mediation is sometimes more efficient and quicker than arbitration in resolving sports disputes. Compared with other dispute resolution mechanisms, sports mediation has three key advantages.
- Confidentiality. Without the permission of disputing parties, all circumstances mentioned or taking place in the mediation procedure will “stay there”;
- Neutrality and impartiality. Mediators only assist disputing parties to develop their respective solutions; and
- Mediation is not legally enforceable. The will of disputing parties is of paramount importance.
Court of arbitration for sport
The Court of Arbitration for Sport (CAS) was founded in 1984 upon proposal by Juan Antonio Samaranch, former president of the International Olympic Committee. According to the Sports Mediation Rules of the CAS, mediation can be defined as “a flexible process conducted confidentially in which a neutral third person (mediator) actively assists the disputing parties in working towards a negotiated agreement, with the disputing parties in ultimate control of the decision to settle, and the terms of resolution”.
(1) Mediation mode. Generally, the CAS proposes a “Mediation-Arbitration (Med-Arb)” dispute resolution procedure to the disputing parties, meaning the dispute is identified by mediation and settled by arbitration. First, the parties must agree to mediate the dispute, and the CAS will provide a model agreement.
(2) Procedure. In mediation, if necessary, the mediator may negotiate with each party separately to promote an effective resolution of the dispute. Then the mediator should mediate between the disputing parties with their offers and counter-offers, so as to facilitate the final formation of a mediation agreement.
(3) Confidentiality. The CAS mediation rules clearly require those who attend the mediation meeting not to disclose the content of mediation to any third party unless otherwise prescribed by law, and no record should be taken in any form in the mediation process.
(4) Closure of mediation. Mediation can be closed in three circumstances. If mediation is successful, the disputing parties will reach a settlement agreement. If mediation fails, the procedure can be terminated in two ways: First, the mediator unilaterally ends the mediation; or second, one or both parties to the dispute make a written announcement that the mediation procedure has ended.
Singapore convention on mediation
With an increasing number of international sports disputes, countries are urgently seeking mutual recognition and implementation of mediation agreements. The Singapore Convention on Mediation has promoted the transnational recognition and implementation of sports mediation agreements.
A total of 46 countries including China signed the United Nations Convention on International Conciliation Agreements Resulting from Mediation (the “Singapore Convention on Mediation”) in Singapore in 2019.
Application of the Singapore Convention is contingent on the following conditions:
(1) The matter for mediation should be an international commercial transaction. It must have international elements, namely, at least the disputing parties’ places of business are located in different countries, or the place of business is different from the country where the contract is performed, or from the country with the closest connection. The requirements for “commercial” transactions are similar to those outlined in the United Nations Convention on Contracts for the International Sale of Goods (CISG). That is, the transaction must point to trade rather than day-to-day personal consumption, and administrative mediation is unacceptable.
(2) It must be a settlement agreement reached with the assistance of a third-party mediator. Mediation should be centred on the mediator (individual), while the management agency should principally play a supporting role in mediation.
(3) The settlement agreement must be an agreement that has not been confirmed and enforced by a court order or arbitral award. This avoids a conflict between the Singapore Convention on Mediation and the Convention on Choice of Court Agreements, or the New York Convention.
(4) The settlement agreement must be in writing. The Singapore Convention recognises a settlement agreement as “in writing” if its content is recorded electronically or in any other retainable form. The New York Convention requires the traditional written form, and the UNCITRAL Model Law on International Commercial Arbitration has confirmed the oral form of arbitration agreement since 2006. It is obvious that the Singapore Convention on Mediation has made a compromise.
The main forms of mediation in China are people’s mediation, judicial mediation and administrative mediation. However, the Singapore Convention does not apply to mediation in administrative mediation, litigation or arbitration. It can only be applied to sports mediation in which independent individuals or organisations serve as mediators.
Therefore, it is very urgent to establish official or non-governmental sports mediation organisations. Otherwise, parties to domestic sports disputes will have to turn to the CAS or foreign mediation agencies to seek application of the Singapore Convention on Mediation and have their mediation agreements recognised and enforced. In addition, it is necessary to clarify the status of people’s mediation, which generally resolves civil rather than commercial disputes.
There is still a long way to go before the Singapore Convention on Mediation becomes applicable to sports mediation in China.
First, a sports arbitration and mediation system should be established; otherwise, disputing parties can only rely on administrative mediation or sports mediation at the CAS or foreign courts.
Second, it remains to be studied whether people’s mediation and other forms of mediation fall within the scope of application of the Singapore Convention on Mediation.
Finally, even if all the issues are properly addressed, there are only a few sports disputes that will eventually enter the mediation process, and the procedures for recognition and enforcement vary from country to country. Notably, the New York Convention was not applied to recognition and enforcement of China’s arbitral awards until 60 years after its creation.
Jia Xiangming is a senior partner at Zhongzi Law Office. He can be contacted at +86 10 6625 6818 or by e-mail at email@example.com
Li Jiayao is a trainee lawyer at Zhongzi Law Office. She can be contacted at +86 166 0126 9062 or by e-mail at firstname.lastname@example.org