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

Abstract

In his 2008 report to the United Nations Human Rights Council, Prof. John Ruggie, the Special Representative of the UN Secretary-General (SRSG) for Business and Human Rights, set out a three-part framework to advance a shared understanding of the complex interactions between companies and human rights. The framework, subsequently endorsed by the Human Rights Council, 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 the third pillar of the framework on access to remedy, Ruggie reflects in both his 2008 and 2009 reports on the respective roles of judicial and non-judicial grievance mechanisms. State-based mechanisms are emphasized as an essential part of the state duty to protect human rights. Company-level mechanisms are seen as crucial to the ability of companies to fulfill their responsibility to respect rights. 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.