October 2017
Mediation is also known as Alternative Dispute Resolution (ADR) but may be otherwise described as a managed conversation.
Mediation is used as a mandated step in resolving disputes whether between big companies tussling over money in court or in arguments between members of sporting clubs.
And that is one of the benefits of mediation: it is always confidential to the parties and any discussion held at mediation cannot be used as evidence in any court proceedings or in any other forum. Sometimes, mediation would be the preferred course of action at a club level if no formal or informal procedure has managed to settle the matter.
Grievance and discipline provisions in sport constitutions
Most sports bodies, whether at club, state or national level, have clauses in their constitutions dealing with grievance and discipline matters.
A grievance is a complaint by a person or organisation against another person or organisation, or perhaps more than one. A discipline matter is where a person or organisation is “charged” with breaching the rules, including the constitution and policies, which can result in a penalty being imposed.
Penalties may range from a warning to a fine with the ultimate sanction being expulsion after the matter is dealt with via a tribunal or similar hearing conducted in accordance with the rules of natural justice.
It is for grievance matters that mediation is generally applied as a mandatory step in dealing with the complaint or grievance.
The dispute
In the Play by the Rules material on complaint handling the role of the Member Protection Information Officer (MPIO) is explained. There is also dedicated training for MPIOs on
https://www.playbytherules.net.au/online-courses/mpio-online-course. The purpose of the MPIO is to be the first port of call for a complaint and assist the complainant with the provision of information about how the complaint might be dealt with. The MPIO does not mediate or investigate or otherwise seek to resolve the complaint or grievance him or herself.
If through the involvement of the MPIO, a satisfactory outcome can’t be reached then the next step is for the matter to be mediated.
Quite often arguments and disputes flare up and are left to a slow burn whilst people within the club or sport decide how it might be dealt with. In that time tempers rise as does the temperature. People hear things, take sides, gossip, spread misleading statements and quite often make things worse to the detriment of all involved and to the club or sport as a whole.
None of this is surprising as people are friends and colleagues for the most part both on and off the field of play. No one wants to wave a big stick or make a decision about who is right or wrong because of the fall out that will follow.
The role of the board of committee in dispute resolution
It is certainly not the role of the board to play any role in seeking to resolve a dispute. Members of the board are inherently conflicted as they will each know one or both parties and cannot be impartial when the interests and reputation of the club or sport is on the line.
Some club and sport constitutions provide for the board, or perhaps the president or chairman, to be the mediating body and if that is you then advice should be sought to amend your constitution.
What is mediation and when should it commence?
It is at an early point in an argument or dispute where mediation should be employed. This is before it gets out of hand, before reputations are sullied and trashed and before irreparable damage is done to friendships and the fabric of the club.
Mediation means that no one from the club or sport needs to be involved at all.
Mediation allows for the complainant and the respondent, the disputants (parties to the dispute) to put their positions to each other in a structured conversation managed by a mediator who is entirely independent of the parties, and the club or sport, in a confidential meeting.
Why mediate?
Mediation is a controlled process where people can come to an agreement that they can live with. They may not get exactly what they want but they are in control of an outcome.
This is not the case when a third party umpire, such as a judge or arbitrator, has the power to make a decision and impose an outcome whether it be positive or negative, whether it costs money or not and whether a party can live with it or not.
Mediation is much cheaper than litigation or investigation. But if the complaint is about feeling aggrieved about someone’s behaviour then it still can be an expensive way of getting an apology.
Mediation is much quicker than litigation or investigation because it can be arranged to suit the parties, isn’t subject to lengthy delays and can be over in a matter of days or weeks once the parties reach agreement to mediate.
But most of all it enables parties to be involved in a decision about their own lives which is, ideally, one they can live with. Once it’s over life can be lived again.
For a more comprehensive look at mediation and the role of the mediator, the mediation process, what happens when no agreement is reached, what if someone refuses mediation, investigations, the ideal process and when mediation is not suitable visit the Mediation section here.
This information sheet was developed by Play by the Rules in cooperation with Margot Foster AM BA LLB | [email protected]
