Finding a middle ground with mediation


9 June 2020

This answer relates only to the question and should not be extrapolated. There is never one situation that is identical to another and sometimes even the smallest detail matters.


Question: 

Anonymous plays tennis in Victoria and asks “As a club we’ve had a member verbally abuse another member of the club, the victim would like the club to take this further, but the club currently has no process on how to deal with. This attack is out of character for the member and thus the club would like to punish them without having to expel the member. Do you have any advice on the best way forward for the club?”

Answer:

Our Panel Of Expertise panellist, Margot Foster, has responded to the question:

Thank you for the question. Unfortunately, personal abuse by and between members of clubs is not uncommon, even though we’d like to think it was. Usually, you would find a process in your club constitution if you are incorporated under the Victorian Association Incorporation Reform Act. The constitution sets out a process for dealing with grievances, or complaints, of this nature.

In the absence of any formal procedure being available to you my suggestion is that you take the following steps with a view to holding a mediation between the people involved. A mediation is what I like to describe as a managed conversation which, when properly done, can lead to an outcome both parties can live with.

  1. Find a mediator in your area who is independent of the club, and the parties, and ask if he or she can offer a service for this purpose.
  2. Ask the parties if they are prepared to attend a mediation. As mediation is a voluntary process you can’t force or require attendance. The mediator should be able to give you some info which you can then provide to the parties as to why mediation is a good idea. On the face of it club harmony is important, disputes, abuse and disagreements should be settled in an adult fashion and not allowed to fester; gossip and innuendo does no one any good; and you don’t want club administrator time taken up with people’s personal arguments.
  3. Assuming the parties agree to mediation then the outcome will be what it is and the complaint may be resolved if the respondent offers the complainant an apology: sometimes that is all that it takes.

If mediation does not occur and there is no resolution of the complaint then there is little you can do without having procedures available which would enable an investigation of the allegation to take place which may then turn into a discipline matter for breaching the club’s rules. I would not be recommending such an approach even it was available as it is time consuming, can be expensive and often resolves nothing.

To answer your question: without rules you can’t expel the member if mediation does not occur or fails.

It is important to remember that the relationship between a member and a club is one of contract. A member pays fees to belong to the club in order to play tennis and the club provides that service. The reason the constitution and associated policies are important is that they constitute the terms of the contract. Just as you tick the box agreeing to zillions of terms and conditions when buying from iTunes, which creates a contract between you and Apple, so there is a contract between club and member. In order to be able to take action against a member, they need to have ticked your box and agreed to your terms and conditions. In their absence, you can take no action other than by the informal mediation approach suggested.

In conclusion, I would recommend that you investigate the legal status of your club: is it incorporated or not, and what policies do you have that members need to sign up to when they tick that box and pay their annual fees. Tennis Victoria should be able to assist with this. That will give you a starting point as the constitution you would adopt as a requirement of incorporation does include dispute resolution processes, although they are not perfect.

This is not legal advice.

For more information:


Margot is a lawyer by profession with over 30 years’ experience in sports administration and governance at board level. She was an elite rower winning medals at the 1984 Olympic Games and 1986 Commonwealth Games. She knows sport inside out. Visit all of Margot’s responses to the Panel Of Expertise here.


While all attempts have been made to verify the accuracy of the information provided in this written response, the Panel Of Expertise panellists assumes no responsibility for any errors or omissions. Should a sports club face any difficulties as a result of acting on the advice, it is recommended that they seek out independent professional technical support to rectify the situation. The Club Respect panellists will not be held responsible for any repercussions beyond the scope of this response.