Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges

In 2008, Prof. John Ruggie introduced a three-part framework to advance a shared understanding of the complex interactions between companies and human rights. The framework comprises three elements: the state duty to protect human rights from abuse by third parties, including business; the corporate responsibility to respect human rights; and the need for more effective access to remedy.  

With regard to this third pillar on access to remedy, Ruggie reflects in both his 2008 and 2009 reports on the respective roles of judicial and non-judicial grievance mechanisms. Non-judicial mechanisms, Ruggie observes, whether administered by the state or other actors, should conform to a minimum set of process principles, summarized as legitimacy, accessibility, predictability, rights-compatibility, equitability and transparency. With this understanding, Ruggie posits that non-judicial mechanisms – including those based on mediation of disputes – have an important role to play alongside judicial processes in providing remedy for human rights-related abuses by companies. Ruggie’s conclusion is significant given the contrasting focus of much public discourse on adjudication – and particularly judicial processes – as the preferred, if not essential, means to achieve remedy and justice when human rights are at issue. 

In this article, Rees examines the basis for this popular view that mediation and human rights disputes are at best uncomfortable bedfellows, if not inherently incompatible. She highlights competing understandings of what a ‘rights-based approach’ should mean when defining pathways to remedy. She suggests that, contrary to how the term is used in mainstream dispute resolution discourse, its use in the development field opens up an understanding of how mediation can support and advance the enjoyment of human rights in practice. In this perspective, it becomes in many instances a complement to litigation or other adjudicative avenues for remedy and justice. 

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