The Culture of Peace, Mediation and Sports Justice

With sport it is possible to build a culture of encounter among all, for a world of peace.

Pope Francisco

Sport, like other disciplines, is a regulated activity, in this case, to promote its practice and organize the various factors that concur in the development of physical culture and sport in all its manifestations and expressions. It is known that it involves various branches of Law such as labor, commercial, fiscal, civil and criminal, among others.

In Mexico, in accordance with the provisions of article 4 of its Constitution, everyone has the right to physical culture and the practice of sport.

Although there are advances in the so-called Sports Law, which refers to the legal regime that applies to sports activity, there is still little that has been studied around sports controversies or conflicts and on the use of mediation for their attention.

With the new General Law on Physical Culture and Sports promoted by the Deputy President of the Sports Commission of the Chamber of Deputies and the Mexican Olympic Committee, María José Alcalá, among other legislators, if approved it will mean progress in our legal framework in accordance with the dynamics of the sports universe at an international level when contemplating and regulating the new aspects associated with the development and exercise of the right to sport.

The current General Law on Physical Culture and Sport, as well as the aforementioned Initiative, provide that, for the exercise and development of the right to physical culture and sport, various lines of action must be taken into account, such as the promotion of solidarity attitudes , the promotion of the culture of peace, legality and non-violence.

This principle means that sports mediation, to which current legislation refers, is already implicitly provided for the management, prevention and resolution of disputes in the sports field.

One of the issues addressed by the Initiative strengthens Alternative Sports Justice by regulating the possibility that some conflicts and controversies that arise in the field of sport can be managed and resolved through mediation, in addition to arbitration.

It is recognized that in this way the provisions of article 17 of the Constitution are met, by providing for alternative dispute resolution mechanisms.

The Initiative that we are discussing grants the Sports Appeals and Arbitration Commission (CAAD) the power to certify independent mediators and conciliators, as well as private mediation and conciliation centers that can assist it in the exercise of its powers and, in general, intervene to prevent or solve conflicts that arise within sports associations. This option and modality would allow mediation services to be available without weighing on the treasury, taking into account the growing scarcity of fiscal resources.

However, it is considered advisable to maintain the matter related to coordinating a mediation area with the participation of qualified personnel. In other words, the CAAD has this area that could have the powers related to the training, certification and registration of independent mediators and private sports mediation centers.

In this way, the essential bases would be available to develop a sports mediation model, both public and independent.

In previous installments we have exposed the advantages that mediation represents with respect to arbitration, which is part of heterocompositive justice, a branch of justice in which a judge or an arbitrator decides who has the right through a sentence or award, as appropriate. , in which one wins and the other loses, but the conflict is rarely resolved.

Regarding conciliation, which, like mediation, is part of self-compositing justice, it must be taken into account that the conciliator can build the solution proposals that he considers appropriate for the parties involved, with which there is a risk that these solutions will not are applicable in the reality of the conflicting parties. For this reason, conciliation fails to be an optimal means to reduce the burden of cases or wear and tear on the parties and institutions involved.

At present, it has been proven that a growing number of conflicts or controversies require a treatment different from that of the judicial or arbitration process, and mediation is the means that offers this option. For this reason, we recommend that the Initiative not only expressly provide for mediation as a way of managing and resolving certain disputes or legal conflicts in the sports field, but that its use be extended to cases that are currently dealt with only through arbitration, in addition of controversies or conflicts not necessarily legal.

It is important to remember that mediation is considered in the world and increasingly, the peaceful dispute resolution mechanism par excellence. It is a negotiation assisted by a third party, a professional in the field, whose job is to facilitate communication between the parties so that they can build the solution that best suits them. It does not propose solutions or impose them.

The adoption of mediation in the sports field will be possible, in addition to being expressly provided for in the Law, to the extent that sports authorities, entities or organizations such as federations, associations, societies, sports clubs and athletes, mainly, have at your disposal highly qualified personnel who can offer you sports mediation services.

As is known, for the existence of mediation services, the presence of a duly trained mediator is a sine qua non requirement, which does not arise spontaneously or by virtue of an appointment, but rather as a result of highly rigorous specialized training. academic.

In order for sports mediation to be defined and implemented effectively and successfully, it is convenient to consider the existing experiences in the matter, for this reason it is recommended to take private mediation as a model, which is regulated by the Alternative Justice Law of the Superior Court of Justice for the District Federal and the normative instruments derived from it, a model recognized nationally and internationally and by the President of the Supreme Court of Justice of the Nation in 2010, with the recommendation that it be replicated.

The consolidation and use of mediation in the management, prevention and resolution of conflicts that arise or arise would be a great advance in justice in the sports field. The first step has already been taken, let’s not slow down.

It is a challenge that should be addressed and that includes overcoming and convincing those who today oppose the adoption and consolidation of sports mediation, surely due to inconvenient inertia, false fears and ignorance on the matter.

Mediation is an effective way to achieve and crystallize justice in all areas of social interaction as long as its practice is democratized in such a way that wherever a conflict arises, a mediator appears on the scene, duly trained and registered, with the profile necessary to manage the conflict in question.

It is essential to continue promoting this cultural transformation so that the solution to disputes or conflicts in the sports field can be found directly by those involved in them.

*The author is a lawyer, negotiator and mediator.

phmergoldd@anmediacion.com.mx

Twitter: @Phmergoldd