Just putting it out there, in a ‘blue sky’ manner: is there any sort of a case to be had at some juncture in the future to offer an expeditious Mediation process - by mutual agreement between the parties but be non-binding (?); especially considering that in some parts of the world where sailing events are now held, there is, due to social & cultural sensitivities etc, sometimes a reluctance for parties to come forward and to engage in the formal Protest / Hearings or Arbitration processes (I have experienced it myself, with the protest committee sitting around ‘twiddling their thumbs’ so to speak, waiting for protests to be raised – that are certainly ‘out there’, but not raised) .
There would perhaps need to be exclusions of course in such a Mediation process (e.g. RRS 2, 44.1b and 69 incidents).
The members of the protest committee could act in that capacity - perhaps, jointly alongside the PRO, in a collaborative manner with the parties. Give their considered opinion, strictly within the RRS, on fault and remedy (penalty) and the parties are then free to accept this or otherwise.
If thought to have merit, I would be happy to support (within my obvious limits as just an IJ-IT, but considerable experience in other international sectors), along with another or others from this forum, the development, drafting and issuance of a ‘white paper’ to World Sailing on the future initiative (?).
We always want the competitors to enforce the rules on themselves before coming to the room. Coming into the room means there is either a fundamental disagreement about the facts or a fundamental disagreement about the rules, and sometimes both.
If there were some sort of mediation with a non-binding opinion rendered by an official, there is a danger that you could taint any subsequent hearing by allowing parties to rehearse their whole cases and by effectively giving at least one party arguments from an official, presumably a member of the PC, to cite to the rest of the PC before they are allowed to ask their questions. I am assuming here that an entire panel is not involved, because if they are, what is the point?
Logistically, I am not sure how such a process could fit within the normal Protest Time Limits, and the last thing we would want to do, in the interest of efficiency, is to add even more delays top the existing process.
We are better off improving education about the process, being visible at the skippers meeting and walking the docks, and then making our hearing and decisions as expeditious and predictable as possible. If competitors know we will be predictably fast and fair, a lot of the reluctance to the room will dissipate.
RYA Advisory Meeting
https://www.rya.org.uk/racing/rules/rya-rules-disputes-process/
There are problems:
By providing an 'official' venue to rake over incidents but without protest validity or 'official finality', you are actually encouraging a 'no protest' culture, and where the Advisory Meeting 'concludes' that a boat had dead set broken a rule, you then run into possible ill will if the boat doesn't then take a PRP or retire, and possible Rule 2 complaints about knowing that she has broken a rule and not taking a penalty.
I obviously don't like the idea. In my opinion it is dumbing down the sport, and it erodes the responsibility of competitors to enforce the rules.
The process is kind of optional for the protestor (decide not to withdraw the protest) thus allowing the formal proceedings to kick in for enforcement of rules by the PC because the participants are not willing to resolve the issue (for reasons of believing they are in the right or otherwise).
The competitors seem to like it; all the events I officiate at have grown substantially in the last 4 years with many new to racing taking part and I keep being invited back. The culture in both places is that "Face" is extremely important and being disqualified often means the competitor will give up sailing.
As an official the "general enquiries" are easy to manage. My basic message at briefings is that Competitors need to protest at the time and complete a hearing request form asap to give us the chance to sort out problems. Without that all I can do is discuss situations in general.
As to Arbitration I start by talking to the protestor, then the protestee to see if there their stories are similar. If they are not I go straight to a full hearing as we will need to call witnesses. If the stories are basically the same I call an arbitration hearing and see if I can get the parties to agree on the key facts found. If appropriate I will say that, in my opinion, one party has infringed a rule and if it goes to a full hearing they will probably be penalised. Usually they will take a post race penalty and that is the end of it. If the situation is not clear cat it goes to a full hearing. I am always on the panel so they can't change their stories, but at least we have 3 people to listen and ask questions and agree the facts found.
Competitors and race officials report that rule observance has greatly improved over the years and, as I said earlier, the events are growing with more people happy to take part who have rarely raced before.
To me it works well in the situations I am using it for but `I am very conscious that I have to be careful what I say both when consulted during an event and in the arbitration hearing as it is easy for the arbitration hearing to be used as a "learning what to say in the full hearing" exercise. I don't think we need another system. What we have works well.
Appx T with the forum?
Part of the answer is in the preamble.
"Arbitration adds an extra step to the protest resolution process but can eliminate the need for some protest hearings, thus speeding up the process for events in which many protests are expected."
The stated benefit of Appx T is that one might be able to handle some simple cases in the time period that they are awaiting an avail PC panel. So .. they are waiting anyway and maybe their case can be resolved "while they wait".
Only 1 red-flag recorded by the RC and only 1 protest filed .. is maybe another reason to go straight to a full hearing (after offering the parties the option).
Our process already has a bad rep for being too time consuming. The worst thing you can do as an Arbitrator is use a system that is intended to create time-efficiencies and turn it into a time-doubling exercise.
Not all incidents lend themselves to Appx T. Some quick-close and head-to-hearing indicators (that are worth it to establish quickly) ...
I completely agree with you that Appendix T is best used in events where there are always a lot of hearing requests, especially if there is a mix of inexperienced and experienced sailors where you can often resolve a lot of hearing requests very quickly so saving everyone a lot of time. I also completely agree with you on your "quick-list" of :send straight to full hearings".
The example I gave in my submission is where a judge is working alone with no other suitable PC members available in the venue and the internet too poor to allow you to use video conferencing. If you have to go to a full hearing you have to arrange for the other PC members to come to a venue probably the next day if not in several days (where you are involved in a series of races moving along a coast or up a narrow Straite, stopping at a different venue every 2-3 days, some of which can be very small islands with very poor facilities. I try to sort out what I can asap. (Yes it would be good to have a full PC or IJ available at each venue, but the cost is prohibitive).
The NoR clauses I use are:
1. APPENDIX T (Arbitration)
2 PENALTIES FOR INFRINGEMENTS OF OTHER RULES
SIs:
1. RRS T1(b) is changed to: The post-race penalty for each infringement shall be determined by the arbitrator, however rule 44.1(a) applies.
I used to use a SI that said 'Arbitration in accordance with Appendix T may be used ...'
I was persuaded to stop using that discretionary language by an IJ reviewing a championship SI and by an appeal for denying a boat the opportunity to take a Post Race Penalty (PRP) in arbitration.
It is not fair to provide arbitration for some incidents and not for others except when, before arbitration, the arbitrator decides that arbitration is not appropriate (RRS T2).
An arbitration meeting provides parties with the following benefits, which i suggest should be regded, wherever possible, as entitlements:
It is true that the benefit of the arbitrator's opinion may be lost if the arbitrator, in the hearing, decides that arbitration is not appropriate, which will typically be because of conflicting evidence from the parties, or complexity of the incident (again, typically multiple boats/rules), but even without the arbitrator's opinion, having heard the other party's description of the incident, and being reminded about PRP may help a party to decide to take a penalty.
I agree with Angelo that, where a protest form discloses multiple boats or complex rules interactions (as well as rules breaches outside the scope of arbitration, that is not Part 2/RRS 31), arbitration will not be appropriate and, in accordance with RRS T2, an arbitration meeting should not be held.
I do not agree, and in fact I think it is quite improper for an arbitrator to take evidence from or to question each party separately before an arbitration meeting. This creates risks that:
Even for a singular club protest, arbitrating at the door of the hearing room, if i can finalise a protest and release the parties (and the waiting protest committee members) in 15 minutes, instead of a full hearing:
If, say for a club race, where a protest committee has not been assembled, prompt arbitration, if successful, may avoid the need for a full hearing, but having a full protest committee available is not a reason to not use arbitration and deny parties the benefits.
I sometimes think that experienced judges (and RO), when invited to help at events, should be a bit more hard nosed, and say to OA 'I'm happy to come along, but you need to find a some local sailors to come on the protest/race committee to gain experience (and would you like me to run a judges/RO seminar while I'm there?)'
You're attempting to apply the simple arbitration process, with fairly strict limits on its appropriateness, as we've just discussed (2 boat, boat on boat, few rules, little conflicting evidence, little scope for interpreting/misinterpreting rules) to rules disputes that are inherently more difficult and complex.
You're then twisting the parties' arms: accept my opinion or else wait days until I get a protest committee together.
You're inviting parties to make a PRP/withdraw decision that is much more complex than for a Part 2 breach.
And if they accept your opinion they have lost their right of appeal.
If you think you absolutely have to act one out, then i would suggest the better course would be to call a protest hearing with a committee of 1. That way you can take all the evidence, and you preserve the parties right of appeal.
That's a good point to highlight that aspect of T2's text: (emphasis added)
I think that what I shall do now in my spare time, over the course of the coming Sailing Season 3 here, is to: tabulate all of the salient comments from all contributors hereto , and attempt to develop a full internal ‘mock-up’ of an Appendix U – Mediation (verbiage & diagrammatic fashion) - just to keep it ‘clean’ from Appendix T (leaning also into other industry sectors – research what exactly has been done on it in the sailing world), and progressively discuss it with our Chief Judge here (and other IJs as they come here) – if at the end of that internal review cycle we feel that it ‘has some legs’ I will recycle it back into this forum (or just put it into the ‘round filing bin’ 😊).
Please share what you come up with. Update us here and you can also post the text in the "Share your language ..." forum .. so people can find it more easily.