MEDIATION: AN EFFECTIVE TOOL IN THE RESOLUTION OF HUMAN RIGHTS DISPUTES?
Abstract
For as long as possible, mediation has been viewed by many as an effective tool for resolving commercial disputes. However, it is increasingly becoming just as viable a tool in resolving human rights issues as well. There are of course reasonable concerns about whether this alternative means of dispute resolution is advantageous to the complainant, given that it is a process usually conducted behind closed doors. To some, it may seem like a case of sacrificing transparency on the altar of cost-effectiveness, which does no good in safeguarding fundamental human rights. This paper seeks to analyze this mechanism’s viability by highlighting its functionality in other mediation jurisdictional climes that are navigating it somewhat successfully, while also considering its drawbacks.
- INTRODUCTION
Mediation is a means of alternative dispute resolution in which a neutral third party, known as a mediator, resolves conflicts or disagreements between two disputing parties. Mediation is a commonly utilized alternative to litigation for Business-to-Business and Business-to-Customer related disputes, labor and employment disputes, and environment-related issues. It is also commonly used for domestic disagreements and family-related disputes. In the context of human rights disputes, mediated resolutions may offer benefits to the parties, including reduced legal cost, less stress, speedier resolution, privacy, greater remedial flexibility – including the availability of remedies that may not have been available through adjudication, greater participant control over, or involvement in the process, greater acceptance of the resolution and therefore greater long-term sustainability and avoidance of enforcement costs and expensive judicial reviews of decisions.[1]
On the other side of the coin, human rights disputes usually consist of human rights violations which are most times, by their very nature, highly sensitive. As such, it may be fair to say that one of the attractions of litigation for an aggrieved complainant is the prospect of someday having his/her ‘day in court’. In a way, it is understandable why having their matter brought up in a court of law would be a more preferred option: it is public, open, and lays bare all the alleged grievances of the injured party. Most times, the court of law doubles as a court of public opinion, where “not only must justice be done, it must also be seen to be done”.[2]Many feel that this opportunity is denied to the complainant(s) in a human rights dispute by the confidential nature of mediation. Additionally, credibility is lent to the adjudication process by the availability of judicial precedence as opposed to mediations, where such precedents may be non-existent. Other areas of concern relating to mediation in human rights disputes include the potential vulnerability of the complainant, the power imbalance between the parties, and the possibility of surrendering one’s human rights for less than their value.[3]
Further criticism against mediation is that, since human rights issues are mainly of a public nature, mediation lacks the appropriateness for human rights complaints due to its private nature.
Whether the mediation process can be well suited to resolve human rights issues and how this can be achieved will be discussed in the following paragraphs.
- MEDIATION IN HUMAN RIGHTS
In foreign climes around the world, the effectiveness and utilization of mediation in resolving human rights disputes are being explored. The Centre for Effective Dispute Resolution (CEDR), in 2019, began an initiative to explore the capacity to design a new facility to harness and provide best practice, and a hub for resolving human rights disputes using mediation as a tool. It is the organization’s opinion that mediation is a tool that has been underused in the realm of Human Rights Disputes. This initiative was set up in conjunction with the UN Geneva Forum on Business and Human Rights, an event that captured a range of themes such as child labor, indigenous peoples’ rights, freedom of expression, slavery, workplace harassment, and privacy rights.
A panel presentation, ‘Mediation as a Viable Access to Remedy’, was held as part of a workshop on the initiative, and among the many things discussed were: the skills and challenges of a mediator in resolving human rights disputes, ensuring conciliation and mediation of complaints of breach of human rights while taking into consideration transparency and human rights standards. Also discussed on the panel was the value of good law or regulation in terms of incentivizing the use of mediation. [4]
This is undoubtedly necessary because the legal framework goes a long way in facilitating successful and effective mediation of human rights disputes and creating a system that the public can have confidence in. Many countries all over the world such as Ukraine, Poland, Greece, Morocco, Switzerland, New Zealand, Israel, Thailand, and France, amongst many others, have established formidable legal frameworks. However, there are many yet to follow in their footsteps. Faced with the problem of inefficiency of the court system in many countries, another reason to mediate human rights concerns is because of the significant delays in adjudication due to the growing backlog of cases.
Contrary to some concerns about the unsuitability of mediation to resolve human rights disputes, research has shown that people who use mediation to resolve human rights concerns report high levels of satisfaction with the process. For example, 99.6% of complainants who settled their human rights case within 30 days reported that they would use the mediation process again.[5]Mediation has been used to resolve human rights abuse cases. In Ghana, the Commission on Human Rights and Administrative Justice (CHRAJ) has used mediation to resolve cases often involving conflict arising in divorce and child custody issues and in disputes between family members, neighbors, business partners, landlords and tenants, and labor unions and management. This has promoted the rights of neighbors and family members in society. In 2008, a total of 7,057 (72.8%) complaints received by CHRAJ were settled using Mediation and Negotiations (CHRAJ, 2008).
Additionally, community mediation has relieved the human rights courts of a lot of cases that would have come to them. This gives human rights tribunals and courts enough time to deal with abuses that are criminal in nature. Mediation also prevents wars and massive human rights violations and helps to rebuild societies in the aftermath of the conflict. Furthermore, mediation makes people human right-conscious and is also an effective alternative when behavioral change is desired in a person. Mediation results are usually achieved far more quickly and economically than litigation or arbitration. Mediators are communicators and facilitators; they use their skills to counsel disputants to make them think deeply about the effects of the abuses they perpetrate on others. People who could have been sent to prison through litigation for their inability to speak eloquently or procure the service of a good lawyer will have their rights protected if mediation is used.[6] As a further testament to mediation as a viable tool for resolving human rights complaints, the Human Rights Legal Support Centre (HRLSC) has published on its website, human rights issues in which it successfully attained settlements at mediation.[7]
3.0 GUIDELINES TO SUCCESSFUL MEDIATION OF HUMAN RIGHTS DISPUTES
According to the Human Rights Tribunal of Ontario (HRTO), there are five crucial elements to successfully mediate a human rights dispute:
- The will of the parties: In light of the importance of the rights at stake, all parties must feel that they are full participants in shaping the process and its outcome and that they are permitted to withdraw at any time.
- Early mediation: Mediation should occur as early as possible in the life of the dispute. As a dispute draws on, parties become increasingly entrenched in their positions. Expenditure of time and resources over a long period of time can lead to the hardening of positions. If the parties are in an ongoing relationship (e.g., co-workers), there is a broad interest in resolving the dispute as quickly as possible to return to a functioning workplace.
- The involvement of all necessary people (including support people): Everyone necessary to resolve the dispute must be involved in the mediation. In a dispute between coworkers, for instance, a manager or HR representative may have to be involved to ensure that adequate and realistic solutions are negotiated and that they obtain the necessary approval for implementation. Human rights complainants are frequently unrepresented. In such cases, the presence of a support person or advisor may be encouraged to ensure the complainant is supported, and that her participation remains consensual throughout the process.
- Clarity regarding confidentiality: Confidentiality is essential for parties to negotiate meaningfully, but it can be seen as both a benefit and a drawback to mediation. One complainant may prefer a private forum to discuss sensitive issues, while another may want to showcase their dispute as an educational tool for the public. Parties need to understand their confidentiality obligations. A standard form mediation contract contains provisions stating that nothing that transpires in the mediation will be referred to, or sought to be out in evidence, in any proceeding. Even in the absence of the confidentiality clauses, settlement privilege – the evidentiary protection of communications exchanged by parties in the settlement discussions – may apply (Union Carbide Canada Bombadier Inc., [2014] 1 S.C.R. 800). That said, parties can mutually agree to disclose information that was negotiated during the mediation, such as an apology or a new workplace policy. This addresses the concerns of transparency of the mediation process and goes to show that mediation proceedings are not strictly private and confidential. Information can be disclosed where it is necessary to enable any party to perform its legal duties. Also, any criminal offenses disclosed during the proceedings are not subject to confidentiality protections.[8]
- Outside-the-box thinking: Legal remedies do not always satisfy a complainant’s interests, but remedies in mediation are virtually limitless and can extend beyond the parties themselves. For instance, the mediation of a sexual harassment claim in a traditionally male workplace may lead to an employer’s commitment to recruit and hire more women to generate a culture shift and create a more inclusive and comfortable working environment.[9]
In furtherance of attaining the goal of having more successful mediations of human rights complaints, the United Nations Institute for Training and Research (UNITAR), on 26 April 2020, organized a workshop entitled “Mediation and Human Rights” taught by two Columbia Law Professors at the Singapore mission to the United Nations in New York. Participants were taught that mediation can be a powerful tool in the process of advocating for and protecting human rights. The session highlighted how mediation may further the United Nations’ Sustainable Development Goals by critically examining some current human rights mediation practices and highlighting some mediation skills that can be adapted and incorporated into human rights work.[10]
Human Rights bodies such as the British Columbia Human Rights Tribunal (BCHRT) are expected to resolve cases before them within the context of a public mandate that includes eradicating discrimination. To this end, and with various factors being considered, the tribunal in British Columbia has designed its dispute resolution model, laying out core principles of its reform process which are geared towards ensuring a fair process for complainants.[11]
Other guides to ensure the effective resolution of human rights complaints using mediation include the Training Manual on Human Rights Monitoring, which spells out in great detail how human rights organizations can successfully resolve human rights disputes which arise in communities where they are located,[12] and the United Nations Guidance for Effective Mediation, which was issued as an annex to the report of the Secretary-General on strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention, and resolution and is also designed to support professional and credible mediation efforts around the world.[13]
4.0 CONCLUSION
It is irrefutable that mediation as an alternative dispute resolution mechanism has successfully reconciled human rights cases throughout the world, including a wide range of problems experienced by a minority, racial or ethnic groups, communities, tribes, and individuals. Most of the problems taken to mediation have been resolved and constructive changes in attitudes and relationships, as well as in living conditions, have been achieved. Unlike the legal adversarial method, the end result of mediation does not consist of ‘winners’ and ‘losers’, but of parties who have carefully examined and defined a set of issues and have come to an accommodation of views and practices. The main focus is not on adjudicating alleged past offenses but on forging consensus as to reasonable and desirable new ways of doing things moving forward.[14]
It is important to note that even for all of its success, mediation may not be effective in the following circumstances: if one of the parties is unwilling to cooperate or compromise if there is a power imbalance, that is if one of the parties has a significant advantage in power over the other. Mediation may also not be a good choice for human rights dispute resolution if the parties have a history of abuse or victimization or if the matter is criminal in nature, in which case litigation would be a more effective means of resolving the dispute.
Victoria Harrison is a penultimate level Law student at the University of Lagos and a senior associate editor of the Unilag Law Review.
Her writing interests include topics on Human Rights, Intellectual Property Law, and Alternative Dispute Resolution.
[1] Heather M. MacNaughton, The Role of Mediation in Human Rights Disputes, p.3
[2] R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)
[3] NataiShelsen, How to Successfully Mediate Human Rights Disputes (31 July, 2019) available at https://goldblattpartners.com/experience/publications/post/how-to-successfully-mediate-human-rights-disputes/ (accessed 19 August 2020)
[4] Dr. Karl Mackie, Mediation in Business and Human Rights, (CEDR 16 December 2019) available at https://www.cedr.com/mediation-in-business-and-human-rights/# (accessed 14 August 2020)
[5] Dr. Gail H. Forsythe, Using Mediation to Resolve Human Rights Issues in the Workplace, prepared for Alberta Human Rights and Citizenship Commission (2003 Her Majesty the Queen in Rights of Alberta), p.2 para.4
[6] Charles Ohene-Amoh, Mediation Skills and Its Relevance in Human Rights, University of Education, Winneba, Faculty of Social Sciences, Department of Social Studies.
[7] Available at https://www.hrlsc/on.ca/en/human-rights-stories/settlements-mediations (accessed 16 August 2020)
[8] Templars, Mediation procedure in Nigeria ( 9 September 2019) available at http://www.lexology.com/library/detai.aspx?g=b8d840e8-afed-490e-b068-122d6887470c(accessed 14 August 2020)
[9] Supra note 3
[10] Available at https://unitar.org/about/news-stories/news/unitar-delivers-course-mediation-and-human-rights(accessed 16 August 2020)
[11] Supra note 1
[12] Available athttps://hrlibrary.umn.edu/monitoring/chapter21.html (accessed 16 August 2020)
[13] Conciliation Resolution, “United Nations Guidance for Effective Mediation” available at https://www.c-r.org/resource/united-nations-guidance-effective-mediation (accessed 19 August 2020)
[14] Supra note 6
