How SPFL dispute could have avoided going to court
The arbitration panel has issued its decision. The legal arguments have been analysed and adjudicated upon. In many ways, the whole process has been a defining moment for the sport. There may be a danger that the bad feelings created will linger.
But was there another way to handle the situation? Litigation and arbitration involve the taking of positions, arguments about the rules and the application of the law. There are almost inevitably winners and losers. That’s the way the system works. Sometimes that is necessary; perhaps this was one of those cases which needed that approach. However, most disputes are not resolved in this way. Only a very small percentage of legal conflicts end up in court or arbitration. The vast majority are resolved by negotiation, by stakeholders working together to find an outcome which meets the needs and interests of all concerned.
Of course, such negotiations can get stuck or there may seem to be insuperable barriers. However, rather than then defaulting to a legal decision, in many situations nowadays including in the sporting world, a process of mediation is used to help those involved to find a workable outcome. Indeed, mediation can be written into a sport’s procedures for addressing difficult problems when they arise. A mediator acts as an independent facilitator, not issuing decisions or determining who wins, but working with the different groups to find a solution which works for them. It is hard work for all concerned but the track record is impressive.
Could mediation have been tried in the SPFL dispute? It would have been an interesting opportunity to try something which might just have helped everyone to have their say, explore what is really going on under the surface, rigorously examine the options and, just maybe, set a new tone for the future. Clubs, the governing bodies, funders and others will need to find ways to work together if Scottish football is to thrive. Many would conclude that utilising mediation should be part of the toolkit for doing so.
John Sturrock QC is Founder and Senior Mediator, Core Solutions.
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