Mediation in Business and Human Rights

by Dr. Karl Mackie

16/12/2019

Developing Best Practice

CEDR has in the last year been working with a Multi-Stakeholder Steering Group to look at the effectiveness and utilisation of Mediation in Business and Human Rights’ Disputes.

The project under the auspices of the CEDR Foundation is intended to look at the methodology of mediation techniques and processes in Business and Human Rights’ Disputes, and is exploring the capacity to design a new facility to harness and provide best practice and a hub for these disputes.

We will be providing more information on this project throughout 2020 as we progress it.

Head of the Project’s steering Committee, Dr Karl Mackie CBE, CEDR’s Founder President, talked to us about his recent trip to the United Nations Forum in Geneva in November 2019 to develop the case for this initiative.

Despite its applicability, mediation is a tool that has been underused in the realm of Business and Human Rights Disputes.  There is a clear suitability of mediation to these disputes.  Human rights issues tend to be particularly acute in the range of social conflicts, and equally the corporate world is increasingly aware of its need to grapple with how best to ensure that business meets the challenge of effective stakeholder engagement and responsible conduct in order to survive and thrive.

As such, I was pleased to take our Mediation in BHR initiative to the UN Geneva Forum on Business and Human Rights.

The United Nations Geneva Forum on Business and Human Rights has been running for 8 years, helping to profile and encourage developments around the United Nations Guiding Principles (UNGP) that have become the international standard for good practice by corporates in this area.  This November, the event attracted some 2,500 participants ranging from State and UN representatives, major corporates, civil society human rights groups or sector lobby groups, through to campaigners on human rights from regions around the globe, indigenous group representatives, through to academic think tanks and investment institutions.  The event over 3 days captures the range and diversity of themes in this arena, both traditional themes such as child labour, indigenous peoples’ rights, freedom of expression and of organisation, slavery and supply chains, through to emerging themes such as workplace harassment, digitilisation and privacy rights, AI and the future of work, climate change impacts.

The event is a springboard for new thinking and sharper focusing on lessons from experience,  priority areas for development, and strategic thinking on topics such as how to enhance impact and corporate/stakeholder governance. Over time guiding ‘mantras’ in this field have won favour, such as ‘Protect, Respect and Remedy’ as the three pillars of the UNGP, and the recent favourable references to ‘smart mix’ thinking as preferable over an overemphasis on singular focus such as ‘hard’ rights regulation or ‘soft’ guidelines/standardisation approaches. Progress towards a mandatory treaty is also under way.

I was therefore privileged to be part of one of this year’s workshops, a panel presentation ‘Mediation as a Viable Access to Remedy?’, on the outcomes of the first year of work by CEDR’s Steering Group on Business and Human Rights.   The group was begun following a conversation I had had with a claimants’ firm lawyer, Dan Leader of Leigh Day, which led to CEDR convening independently a group of varied stakeholders – major law firms and corporates as well as industry associations and civil society groups, to consider the role of mediation as part of the non-judicial remedies available in human rights.  Caroline Rees, a leading pioneer in this area and president/co-founder of Shift (and who had worked with Professor John Ruggie to develop the UNGP), has been a particular supporter of the launch of the initiative, as has Robert McCorquodale, a leading academic and barrister in the field of international law. This core leadership group helped evolve some of the key stakeholder membership in the CEDR initiative, and the group is gradually expanding its reach and supporters.

The panel presentation at the UN was used as a platform for profiling the potential for mediation as a vital tool in the smart mix of the remedies and processes available for business and human rights work. It was also defined as a platform for further consultation by the Steering Group on the scope of the role that CEDR can play in these developments, given 30 years of experience in working with mediation as a process, and CEDR’s key institutional role particularly in achieving international reach in mediation’s acceptance and development.    Some 200 participants attended the workshop and received a summary note of the concept of CEDR as a practical and professional ‘hub’ for international leadership in business and human rights standards, training and service provision.

Robert McCorquodale moderated the Panel we had convened to present our key themes.  We started with two speakers from Latin America.  Pablo Lumerman from Argentina is a leading mediator in mediation of community/corporate conflicts and spoke fluently on the skills and challenges for a mediator in such contexts, the need for a process to be ‘rights-compatible’ and subject to effective rules of engagement including effective ‘symmetry’ between the parties in terms of respect for legitimacy and balance.  Jorge Nahuel, an activist in communities and indigenous peoples’ rights, spoke of the challenges and opportunities for local communities in finding effective opportunities for getting on the agenda, and achieving meaningful dialogue, with international corporates and with state officials.    Jorge had been involved in several of Pablo’s mediation cases, and both of them were able to bring a sense of realism and ‘groundedness’ to the realities of mediation practice in the acute situations that developed over exploitation of natural resources such as mining, forestry, fishing rights. Sarah Ellington of DLA Piper, gave a corporate disputes lawyer’s perspective on managing disputes and litigation in the human rights arena, both from an advisory perspective and in terms of disputes practice in mediation and litigation including due diligence approaches. Cristina Tebar Less, Head of the OECD’s Responsible Business Conduct Unit, outlined the OECD system of 48 National Contact Points and their ‘good offices’ role in ensuring conciliation and mediation of complaints of breach of the OECD Guidelines for Multinational Enterprises (which cover due diligence commitments, transparency and human rights standards amongst other matters).

I completed the panel, outlining from my experience in OECD cases and beyond how mediation can enhance problem-solving in the complex issues and arenas often found in human rights cases, and the value of good law or regulation in terms of incentivising use of mediation.  I concluded with a reference to the Steering Group paper circulated to participants, which invited consultation and comment on the remit of the ‘CEDR Facility on BHR’ being proposed by our Steering Group.  The paper describes the benefits of mediation in this sphere, the planned stages of the project and the likely development of a ‘hub and spoke’ model of influence, professional leadership and service provision – this to ensure mediation capabilities are enhanced globally and that access to professional mediation  capabilities appropriate to cases and cultural conditions are facilitated.   Seed funding for this project is currently being sought.

Our Panel Moderator encouraged participants to question the Panel along these grounds.  This led to a stimulating range of questions and comments from delegates – around mediation’s effectiveness in fragile state or business environments and the challenges faced in finding effective mediators, dealing with power imbalance and transparency questions, how to fund mediation projects, the role of national human rights institutions in using mediation, and how to ensure effective cultural awareness in the acute and diverse social, political and human situations encountered in business and human rights work.

I have of course attended many presentations on mediation and have spoken on many panels, but this session did feel particularly special.  Human rights issues tend to be particularly acute in the range of social conflicts, and equally the corporate world is increasingly aware of its need to grapple with how best to ensure business meets the challenge of effective stakeholder engagement in order to survive and thrive. This session was a very tangible demonstration of the value of the work and linkages achieved already by the CEDR Steering Group on Business and Human Rights, and of the potential significance of the role for CEDR and mediation in forthcoming developments. This applies not only to autonomous work but the opportunities to support other institutions by enhancing the professional quality of mediation practised by such organisations.

On that note, it is worth mentioning that the final plenary session of this year’s meeting, really brought out how much climate change issues are now intersecting with human rights challenges, and are likely to set a new and vital agenda for both business and for human rights work in the near future.  Mediation will not only be just a part of a ‘smart mix’ response in my view, but is an essential ‘human-centred’ process ingredient to enhance our social fabric and social capital at a time when we are facing such potentially severe risks and complex challenges for our societies and our planet.

The CEDR Foundation’s initiative on mediation in Business and Human Rights cases will continue to develop in 2020.

As we take the project forward, we will be adding to the CEDR website on it as well as publishing reports and hosting events.  If you are interested in finding out more as an active participant, please contact Karl Mackie’s Executive Assistant Anisa Butt on abutt@cedr.com .