Duncan Mackay
Michael_CoverThe multi-million pound dispute that has come to light this week involving the British Olympic Association (BOA) and London 2012 has flagged mediation up as the first port of call. This is a row over money that is requiring neutral intervention and its association with 2012 is creating a lot of media attention.

From my point of view as a professional mediator I was surprised to have read today that the BOA was able to select the International Olympic Committee (IOC) as the official mediator.

I have doubts that the IOC is the ideal mediator in this high profile situation.

There appears to be some lack of clarity as to whether this is actually a mediation – whereby parties find their own solution with the help of a neutral mediator or if in fact if it will be an adjudication - when a decision that is binding on the parties is handed down by a neutral party.

The whole reasoning behind mediators and adjudicators from a personal stand point and I am sure those with international qualifications on vetted panels will be of the same opinion, is that these appointed people must be completely independent and totally impartial to the parties involved in the dispute at hand. The other point to raise is that the mediators and adjudicators should be able to easily prove this and let the public if necessary easily see that they are a totally independent party.

Society presently demands total transparency on anything that has a place in the national and international press and therefore any sporting body, business etc must acknowledge that they will have to in some way prove themselves through the press to the rightly judgmental public who in this day and age pick up on any notion of unjust and bias appointments through an ever more educated public jury.

It seems a safer option to appoint a mediator that is from a neutral organisation which can honestly vouch for the accreditation of and professional competence of their members.

It appears that the IOC is incorporated into the dispute resolution procedure of the agreement between the BOA and London 2012, with a possible appeal to the Court of Arbitration for Sport - which the BOA have now taken.

It really would have been better professionally and for the clean 2012 profiles of the BOA and London 2012 for them to have made the first stage in resolving this dispute originating back in 2005 to have been mediation by an independent mediator affiliated with Sports Resolutions, the World Intellectual Property Organisation or the Court of Arbitration for Sport.

This could then have been followed up by a fast track arbitration or adjudication by an independent neutral appointed by one of the bodies.

It strikes me that a 21st century dispute resolution practice is deserved for a 21st century dispute.

It could be deemed as disturbing that in this modern world we are still witnessing impartial mediation techniques that no-one seems to highlight or question logically.

Over the next coming weeks it will certainly be interesting to see if any mediation bodies feel the moral need to start asking questions on the tip of their tongues or if they will shy away from the word 2012 involved in this particular disagreement and keep mute.

However, on a far more positive and uplifting note, the most important and welcome aspect to all this mentioned above is that early dispute resolution is actually being used and the whole thing is so far being kept out of the courts.

Mediation is still the obvious choice on keeping costs down with money in the pockets of the disputing parties rather than in the lawyers' bank balances.

It focuses the minds of the disputers as to how to make sense out of the nonsense and really come to a concrete agreement quickly that is fitting with the preferred outcome of both parties rather than leaving on side feeling like the looser and one the victor that can create a sense of unfinished business from one party's point of view, only for it to rear its ugly head later when for instance the black and white profit figures are called for.

With an Olympic surplus figure being bandied around as £400 million ($648 million) this dispute was going to raise some eye brows and it really should have been prudent for the parties to follow a thought out mediation plan that could be spoken about without risks of embarrassment or question marks in the professional world.

It was short-sighted especially when we are only 500 days away from the Games next week.

The eyes of the world will be on the Games and therefore on the practices of the bodies involved in the greatest sporting event on earth and practices of the strictest professional nature must fundamentally be stuck to.

Michael Cover is the Principal of Michael Cover ADR Limited and over 30 years experience as a barrister, and solicitor, both in private practice and as in-house Counsel. He is an accredited Mediator with CEDR, ADR Chambers and ADR Group and has been involved in over 100 mediations. He is a member of the Sports Resolutions UK Panel as well as being a member of the Panel of Arbitrators and Mediators of Just Sport Ireland, the Irish National Sports Disputes Resolution body.