Although ranked in the top twenty for gender equality globally, Canada has recently found itself on the wrong end of a lawsuit filed by a number of female footballers. These players, including two FIFA Women’s Player of the Year Winners, have claimed sex discrimination against Canada because of its refusal to outfit football pitches with real grass instead of synthetic turf at the 2015 Women’s World Cup. In contrast, men’s World Cup games are played on natural grass, which is safer and considered superior to the alternative, according to the women. The Ontario Human Rights Tribunal (OHRT) has chosen not to fast-track the case, but has instead suggested that the two parties go to mediation to try to negotiate the issue, a suggestion which has been refused by the Canadian Soccer Association (CSA), leaving the offended players stuck with no timeline and no prospect of when or if the issue will be resolved before the 2015 World Cup starting in June.
One of mediation’s selling points is that it stands as a voluntary process. Clients who submit to mediation do so regularly under their own will, not because they have been ordered. This feature is inherently beneficial because of its implication that all parties wish to be there, and thus are more likely to come to a settlement because of an investment in the process. However this also means that it is entirely possible that one of the involved parties will refuse to come to mediation, a freedom unavailable to parties when summoned to court. This facet, combined with the weight of research evidence showing resistance to opening conflict dialogues voluntarily, explains the common shift in preference and court directions to mediate under contract clauses.
In looking at this case, one must consider the inherent imbalance that might impact how much power FIFA yields to determine the outcome. The World Cup is coming up in less than a year, and FIFA/CSA hold a monopoly of sorts – the women of footballing can either play in the 2015 World Cup or they can boycott (which would likely cause other problems for women’s sport, which is typically in a weaker spot than men’s to begin with), but they cannot choose another “provider”, as it were. It is particularly interesting that FIFA opened this past summer’s Men’s World Cup with a message promoting equality across race and gender, and yet has not made a public statement regarding the possible gender discrimination in this case, instead arguing that turf is a playing surface of the same quality as natural grass (there is a myriad of research pointing in either direction for this question).
Part of the job of a mediator is to guide the parties to the negotiation table. Clients and lawyers alike might get cold feet going into the process for a number of reasons, including a lack of familiarity, a lack of faith in mediation, and a belief that the party would benefit more from the winner-takes-all nature of litigated cases. Similarly, when examining the facts of a case, mediators must anticipate where the “trouble spots” will be – be they during the mediation or before it even begins. It seems that having not been prioritized by the OHRT, female footballers will be forced to decide between playing on turf and not playing at all for the 2015 World Cup. At this point, it might only be possible to hope that FIFA will submit to mediation in order to resolve this issue presented by half of its participants. And while on the subject of FIFA…