Sports Mediation: A Lost Opportunity?

by: Alexa Dabao

EJ Obiena’s rift with PATAFA is getting deeper by the day. While the PSC continues to push for mediation as the pathway to reconciliation, the world-class pole vaulter has announced his official withdrawal from the process.

Here’s a quick briefer on sports mediation. 

What is sports mediation?

Sports mediation is a non-binding and informal process where parties in a sports-related dispute come together and agree to appoint a qualified neutral person (called a mediator) to facilitate and assist them in reaching a mutually agreed solution concerning the dispute.

In short, it is a facilitated negotiation, where the disputing parties come to the negotiating table with the help of a mediator to find a win-win solution. In stark contrast to court litigation or arbitration where one usually wins and the other loses, in mediation, both parties can walk away winners.

Must the disputing parties reach a final agreement?

No. Mediation, by its very nature, is non-binding procedure. Meaning, the parties merely attempt in good faith to negotiate with each other to settle the dispute. (EJ has notably accused PATAFA of bad faith) If one of the parties decide to walk away from negotiations, they can freely do so, and close the mediation process. Once this happens, the parties could then transition to another dispute resolution mechanism like arbitration or litigation to settle the issue.

What is the role of the mediator?

Think of the mediator as the facilitator of negotiations. He or she is a neutral third person who is only there to facilitate communication between the disputing parties at the negotiating table. Thus, unlike a judge or an arbitrator, he or she is not there as a decision-maker who issues a final decision that is binding on the parties. A mediator is also a neutral and impartial person, as he or she is typically jointly appointed by the parties.

The goal of the mediator is to facilitate the settlement of the dispute as expeditiously as possible. Thus, when appointed, the mediator will consult with the parties and list down all the issues to be resolved, establish ground rules, and set up a timetable for the process.

Why mediation?

Mediation may not be the only dispute resolution avenue out there, but why is it the better option for the Obiena-PATAFA dispute over let’s say, arbitration or litigation?

Well, mediation is marked by three things: (1) speed; (2) less costs; and (3) the preservation of relationships. 

First, it allows the parties to resolve things outside of the courts. This means a speedier settlement of the issues without having to contend with clogged court dockets. In sports-related disputes, time is of the essence. EJ will continue to have upcoming tournaments around the world in preparation for Paris 2024, and the longer his issue with PATAFA remains unresolved, the less time he could fully dedicate to training and ensuring his tip-top performance, clear of all political burdens. 

Second, less time would also mean less costs. As mediation can be completed in a matter of days or weeks, the parties will be spending way less than in a typical protracted lawsuit. Not to mention, mediator fees are far less expensive than those commonly charged by law firms. 

Last, it preserves the relationship of the parties. How does it do this? 

First, it is a strictly confidential process. Meaning, all the parties present in the mediation process, including their counsels, the mediator, and even the mediation service provider (like PDRCI), are generally bound to keep confidential any information disclosed to them during the mediation. This allows the parties to flesh out and explore all possible options, without any outside influence.

Second, this also means that the disputing parties have greater control and flexibility over the proceedings. It is not a judge (nor the mediator) but the parties who ultimately decide on the win-win solution. When both parties are the negotiators and ultimate decision-makers, and the entire case is outside of public scrutiny, there is a higher possibility that a solution can be reached where both parties are satisfied.

Third, mediation proceedings are informal in nature. As opposed to the parties facing a judge in court with a bunch of rules and procedures designed to separate them, mediation enables the parties to be more engaged with each other and the process, especially since the mediator is allowed to focus on each of the parties’ individual needs and interests rather than their submissions in written pleadings. It will also be less stressful on the parties compared to court litigation.

Given the confidentiality, greater control of the parties, and informality of the process, the parties will have better chances of preserving friendly relations, as the settlement agreement will be a product of their collaborative efforts and good faith negotiations.

How will the PSC mediation work?

The PSC has publicly engaged the Philippine Dispute Resolution Center, Inc. (PDRCI) to help facilitate the Obiena-PATAFA mediation, should both EJ and PATAFA decide to submit to the process. Under the PDRCI Sports Mediation Rules, if there is an existing sports-related dispute and there is no prior agreement by the parties to refer it to mediation, the first step would be for both parties to submit their “mediation submission agreement”. 

PATAFA has signified its intention to participate with PSC, however, EJ has just recently declined. If both EJ and PATAFA don’t agree and sign into mediation, then the PSC’s vision of mediation as a peacemaking process won’t push through. PATAFA may then push through with its initial recommendations of dropping EJ from the national team and filing a criminal case of estafa against him. 

If EJ decides to pursue mediation meetings with PATAFA, the possible next step would be for PSC to meet with them in a pre-mediation session and discuss the stages and terms of the process, such as the proper venue, appointment of the mediator or Panel of Mediators. It seems that those most likely appointed will be PSC Chairman William Ramirez (as the Chair), PSC Executive Director Atty. Guillermo Iroy, and possibly some lawyers under PDRCI’s Panel of Mediators in Sports.

Then, the mediation will commence with the Panel of Mediators identifying the key issues to be resolved, while hearing from both EJ and PATAFA regarding those issues. If negotiation talks are successful, a settlement agreement will be drafted and signed by the parties and the mediators. That agreement marks the resolution of the case.

Now that EJ has officially declined, will mediation no longer be possible?

Not necessarily. Remember, mediation is a product of consent between the parties. So if EJ changes his mind sometime in the future and PATAFA is still willing to undergo a facilitated negotiation via mediation, then he could always come together with PATAFA and enter into the mediation process (through service providers like PDRCI) to finally emerge victorious, both inside and outside the track. Although this time, the PSC’s offer to facilitate the mediation might no longer be on the table.

Alexa Dabao is an associate of the Law Firm of Ingles, Laurel, and Calderon and a member of the panel of sports mediators of the PDRCI.

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