How to Successfully Mediate Human Rights Disputes
In the Summer 2019 issue of ADR Update, Natai Shelsen discusses important factors for mediators to consider when asked to mediate a human rights dispute.
Human rights disputes arise everywhere, and their reporting is on the rise. In 2018, the Human Rights Tribunal of Ontario (HRTO) experienced an unprecedented 25% increase in its caseload. This increase coupled with a shortage of adjudicators has led to significant delays and a growing backlog of cases.
The HRTO recently announced that it will be conducting a “mediation blitz” to deal with its backlog (Ontario Bar Association’s Annual Update on Human Rights, What is New at the Human Rights Tribunal of Ontario?, May 29, 2019). This raises questions relating to the desirability of mediation in human rights cases, the appropriate process and the crucial role of the mediator (including non-HRTO complaints).
The criticisms of mediation in the context of human rights disputes are well-known. The potential vulnerability of the complainant, the power imbalance between the parties, the public interest in adjudicating precedent-setting cases and the possibility of surrendering one’s human rights for less than their true value, have been frequently elaborated.
In spite of that, most human rights practitioners recognize that mediation can be a valuable tool. After all, the benefits of mediation – including lower costs, speedier resolutions and the ability to maintain confidentiality – are equally well-known.
Human rights disputes are in fact ideally suited for mediation. Mediation provides respondents with their “day in court,” and the empowerment that comes along with telling their story. It also demonstrates to respondents the impact of their conduct. Finally, it allows parties to explore interest-based solutions not typically available in a legal forum, which may preserve ongoing relationships.
It takes the right mediator to tap into the transformational power of mediation. They must have good interpersonal and listening skills; sensitivity to gender, culture or diversity issues; creative problem-solving skills; and credibility with the parties. Of utmost importance in human rights disputes is the mediator’s ability to walk the fine line between maintaining neutrality while separately conveying information to parties – particularly information about the impact of conduct or interpersonal misunderstandings.
The successful mediation of human rights complaints requires a bespoke approach to each case. The mediator should use the case development (pre-mediation) conference as an opportunity to identify: the parties’ needs and abilities; their emotional state; their communication skills; their conflict style; any gender, culture or diversity issues; and power imbalances. The mediator must also assess whether the parties can tolerate being in the same room as one another, as this will drive process decisions – including whether a joint session is appropriate.
Once an appropriate process has been designed, there are five crucial elements to successfully mediating a human rights dispute:
The will of the parties
The voluntary buy-in of the parties is particularly essential to human rights disputes, because there is often a power imbalance between 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.
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. The act of crystalizing positions in writing can lead to the hardening of positions, as can the expenditure of time and resources. 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 functional workplace. Practically speaking, the amount of money available for a settlement may also decrease as the cost of litigation increases.
The involvement of all necessary people (including support people)
Everyone necessary to resolve the dispute must be involved in the mediation. In a co-workers dispute, 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 can be seen as both a benefit and drawback to mediation. One complainant may prefer a private forum to discuss sensitive issues, but 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 put into evidence, in any proceeding. Even in the absence of confidentiality clauses, settlement privilege – the evidentiary protection of communications exchanged by parties in settlement discussions – may apply (Union Carbide Canada v. Bombardier Inc.,  1 S.C.R. 800). That said, parties can mutually agree to disclose information that was negotiated during a mediation, such as an apology or a new workplace policy.
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.
Not all disputes are suited for mediation. Where a public precedent is required, where there is a threat of violence or retaliation, or where there is no true willingness by parties to engage in good faith negotiations, mediation will not be suitable. However, with the right ingredients and the right mediator, the mediation of human rights disputes can empower complainants, create enduring solutions and preserve (and transform) ongoing relationships.
Natai Shelsen is a bilingual mediator and litigator at Goldblatt Partners, a leading human rights firm in Toronto. She practices in the areas of aboriginal, employment and human rights law.