Wednesday, February 11, 2009

Opinion: The negotiating aspects of sports mediation

Sport continues to be big business - it is worth more than 3% of world trade and more than 2% of the combined GNP of the 27 Member States of the European Union - despite the so-called 'credit crunch', which has had little impact as far as the world's most popular and lucrative sport of football is concerned. For example, recently a transfer deal of £100 million and a weekly salary of £500,000 were mooted in respect of the AC Milan midfielder Kaka. So, there is much to play for both on and off the field. Where substantial sums of money are in play, sports disputes are never far behind and are on the increase too. This, in turn, raises the question of how best to resolve them. By traditional means - through litigation in the courts - or modern ones, such as alternative dispute resolution (ADR) processes.
ADR takes many forms and a popular one that is proving very successful for settling sports-related disputes - especially commercial and financial ones - fairly, quickly, inexpensively and effectively is Mediation. However, Mediation is not appropriate in all cases, particularly where injunctive relief is concerned and also in the case of doping, which can never be mediated. However, any financial consequences of doping offences do lend themselves to settlement through Mediation.
Mediation is essentially an assisted negotiation conducted through the medium of an independent mediator or facilitator, whose role is to facilitate the negotiation process and assist the parties to reach an amicable settlement of their dispute. The success of Mediation not only depends on the willingness of the parties in dispute to enter into negotiations, but also on the skills of the mediator, who requires not only an appreciation of the negotiation process, but also negotiation skills.
In order to appreciate how to mediate successfully, it is necessary to understand the process and dynamics of negotiating. So, in this article, we will take a look at the general principles of negotiating, which, although not a science, is certainly an art.

Negotiating guidelines
There are a number of useful guidelines to be followed in order to achieve a successful outcome in any negotiations and these general principles apply whatever the nature of the dispute.
In basic terms, negotiating is 'getting to yes'. Like any other form of advocacy - persuading another person to accept your point of view - a negotiation needs to be carefully planned. Before you start, you need to know clearly what your objectives are and how you are going to achieve them. Make sure, however, that your objectives are realistic and reasonably achievable.
An important part of the planning process is to gather as much intelligence about the other side in the negotiation as possible. You will need to know, amongst other things, the kind of people you are dealing with; their strengths and weaknesses; and their aims and objectives.
Again, as part of the planning process, the negotiation needs to be structured into distinct phases. The first phase should identify any points of agreement to get those out of the way; the next, any points of disagreement and the reasons for them. The following phases should be to evaluate - from your own point of view and that of the other side - the importance of these differences and the possibilities for any compromises. Try to identify the matters that are negotiable and the ones that are not negotiable. The points that can be conceded and 'given away' and the ones that cannot - the ones that are 'deal breakers' if not agreed.
Watch out for and try to interpret any 'body language' - that is, non-verbal communications and gestures. This is very important in multi-cultural negotiations. Negotiation also needs time and patience and should not, therefore, be rushed, otherwise bad deals may result.
Every negotiation should be conducted in a courteous and conciliatory manner. When tempers and blood pressures begin to rise, it is time to take a break.
The use of 'role play' - the 'hard' person and the 'soft' one - should be handled carefully. You should decide, in advance, on the particular roles to be played by each of the members of your negotiating team. In particular, you should appoint one of the members of the team to lead the negotiations and someone else to take notes and keep a record of everything that is said and 'agreed' during them. As to the composition of your negotiating team, if the issues raised involve technical, legal and/or financial matters, make sure that there is someone who is qualified and, therefore, can deal with them.
Likewise the imposition of any deadlines, which are designed to move the negotiation along and reach a conclusion more speedily, should also be carefully managed. As in litigation, so also in good negotiation, you should never issue a threat that you are not able and have no intention whatever of carrying out!
Timing is also very important. Choose your moment carefully to press home a particular point. Always know when and how to retreat.
In international negotiations, be aware of and allow for cultural differences and the need, where necessary, for the other side to 'save face'. This is especially important in negotiations with the Chinese and Japanese and also with parties from the Middle East, where pride may be at the heart of the matter or dispute.
Always remember that negotiating is 'getting to yes', and so always try to make it easy for the other side to say 'yes'.

Concluding remarks
You should be aware of all these negotiating techniques not only to use them effectively in your own interests, but also to be aware of any of them when they are being used against you!
In addition to all the other points that I have mentioned, there is one vital or 'golden rule' that should always apply to any negotiation and it is this: Do not insist on getting the last penny!
Also, it is always worth remembering: in a successful negotiation, everybody wins something.


Ian Blackshaw

International Sports Lawyer


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