DLA Piper is working with the Centre for Effective Dispute Resolution, and a core task force of collaborators, to establish a mediation facility to support the effective resolution of disputes in the business and human rights arena. Access to remedy for business and human rights impacts is a key concern for affected stakeholders. A lack of access to remedy can also be a key risk for businesses, investors and other corporate stakeholders leading to financial, reputational and legal consequences.
Mediation is an effective means of providing resolution of business and human rights disputes because of its inherent flexibility and responsiveness. This also means that it is well suited to ensure respect for human rights not just in the substance of the resolution but in the process by which disputes are resolved. As set out in the CEDR Steering Committee proposal for development of a mediation facility, some of the key strengths of mediation include:
- the use of skilled neutral mediators to facilitate tough or sensitive discussions in order to help parties focus on and reach agreement on complex matters;
- the ability to accommodate the complexities of different party perspectives on a problem, of multiple parties or languages (via co-mediation models), and to cut through the challenge of uncertain legal principles or jurisdictional application by focusing on core consensual outcomes;
- the ability to proceed in parallel to, or before the adoption of, formal legal proceedings, so as to test the opportunities for consensual outcomes in conflict settings;
- the capability to provide flexible and cost-effective processes that can arrive at creative and pragmatic outcomes tailored to the realities of a specific situation and the parties involved, rather than to the narrow provisions of a law or contract;
- through the role of an independent facilitator, the ability to address the often inherent power imbalances between companies and affected individuals or communities, giving affected people direct agency in the process and its results;
- the ability of the parties to the dispute to retain control over the process and decisions on whether and when an agreement is satisfactory, while also being able to agree to make any outcome binding in nature.
CEDR and DLA Piper are currently conducting a consultation to identify what tools and documentation are required to enhance the use of mediation for business and human rights disputes, for example, industry and court protocols, incorporation of mediation into grievance mechanisms and whistle-blower procedures, mediation rules and guidelines, contract clauses for triggering mediation, including expanding supplier contract clauses to include mediation as an explicit route for dispute resolution and training for mediators. The aim is to find out more about, for example:
- the resources and the scale of activities behind their schemes:
- if applicable, how they are promoted and the volume of their work;
- the costs and the perceived benefits involved;
- what the perceived obstacles are to their use; and
- who within the organisations oversees them.
We are inviting stakeholders to participate in the consultation by completing any of three questionnaires focused on different types of complaint processes:
- Administration of a mechanism to receive/address complaints relating to external/stakeholder impacts.
- Administration of a mechanism to receive/address complaints relating to internal/organisational issues.
- Participation in external grievance processes relating to business and human rights disputes.
Please see the link to the survey here.
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