What Alternatives Are There to Court?

Alternative Dispute Resolution (ADR) is a general term used to describe forms of dispute resolution other than litigation. This includes negotiation, mediation and arbitration.

ADR can offer a cheaper and quicker way to resolve a dispute with a business.

It is usually less formal than going to court, the parties have more control over how the process is managed and can explore creative forms of remedy. The private nature of ADR means the parties can agree whether the outcome is public or confidential.

But, ADR is not always appropriate for the resolution of human rights disputes:

• ADR alone may be inadequate. Since human rights are legal rights, it may be in the public interest to have a public court decision on the dispute.
• Compromise may not be appropriate where human rights abuse has occurred.
• ADR processes may not have the legal safeguards to address any power imbalance between the parties e.g. access to legal representation and information.

But, where the alleged human rights abuse is not recognised as a breach of national law or where national courts lack jurisdiction, ADR may be able to offer a level of access to remedy.

Also, ADR could be used as a first step, and if this fails, you could try the courts as a second option.

However, before entering into ADR, the consequences of failure should be fully explored.

For more information, see “Alternatives to PIL: Negotiation and Mediation”

Where the parties chose to negotiate, they try and resolve the dispute through direct discussion or through their representatives to find a mutually acceptable solution.

Alternatively, the parties may want an independent third party to help them manage or resolve a conflict by reaching an agreement that is acceptable to both sides. This is called mediation.

The functions the mediator can perform include:

• Addressing the power imbalance between the parties by limiting the number of lawyers acting for each side or by dealing directly with the parties, rather than through their legal representatives.
• Facilitating negotiations and guiding the parties towards consensus.
• Taking on an active role in resolving the dispute, drawing on her or his expertise and experience to propose solutions.

Practical Tip: Get Legal Support

Although negotiation and mediation are not legal cases and you do not need legal representation, it’s a good idea to have support from a lawyer or a civil society organisation.

This will help ensure a business doesn’t take advantage of you in a negotiation.

Below are some examples of where negotiation and mediation had some success for local communities.

Example: Negotiation in Jabir v KiK
In Jabir v KiK, the ILO helped to negotiate an agreement between KiK and affected families and survivors.

KiK agreed to pay 5 million USD to affected families and survivors through monthly pensions.

Example: Mediation between BP and Colombian Farmers
In 2005, a group of Colombian farmers brought a legal action against BP Exploration Company (Colombia) in the UK courts. The claimants alleged that the construction of an oil pipeline by OCENSA (a consortium led by BP) had damaged their lands. BP argued that proceedings should be in Colombia.

In June 2006, BP and the farmers met for mediation in Bogotá. In July 2006, the parties announced that a settlement had been reached.

Example: Mediation between Mining Companies and Communities in Malawi
The Kanyika Community in Malawi brought a legal action against Globe Metals and Mining Limited and the Malawi government, claiming damages and compensation. Both Global Metals and the government filed a defence and the parties agreed that the case should go to mediation.

The parties agreed that Community members who lost their land and were harmed by the mining operations should be compensated.

For more information on negotiation and mediation, see webpage “What Could I Achieve through Mediation and Negotiation?”

Arbitration is a bit like going to court. You and the other side pick an independent, neutral third party to hear your complaint and decide on how it should be resolved. The decision may be binding or non-binding. Unlike in court cases, there is limited scope to appeal the decision.

In some cases, arbitration may be able to provide a cheaper and effective remedy for victims of human rights violations.

Example: Arbitration under the Bangladesh Accord
The Accord on Fire and Building Safety in Bangladesh (2013) (the Accord) was established following the collapse of the Rana Plaza building in Bangladesh in 2013.

Signatory companies to the Accord (international retailers with supplier factories in Bangladesh) sign up to various commitments on factory safety and inspections.

The Accord provides a mechanism to enforce these commitments. Disputes are first heard by a seven-member oversight steering committee and can be appealed to a process of binding arbitration against the company.

Two cases against multinational fashion brands have been successfully brought under the Accord (decided by the Permanent Court of Arbitration) with the signatory companies paying over 2.3 million USD towards remediating unsafe conditions in Bangladesh garment factories.

Going to court or “litigation” is only one way of seeking justice when a business has committed a human rights abuse. Another vital tool in holding businesses accountable is through campaigning.

A campaign is a co-ordinated range of activities dedicated to achieving a common goal.

An effective campaign can:

• Put pressure on businesses to change their operations and provide a remedy by harming their reputation in the eyes of the public;
• Put pressure on government to do more to regulate businesses;
• Give a voice to communities to speak out about human rights abuses;
• Get the attention of organisations and lawyers that could help you take legal action; and
• Get people to pay attention to the issue your community is facing; and
• Get people to pay attention or fund the legal case you are bringing.

Example: Campaigning After the Rana Plaza Tragedy
After the Rana Plaza tragedy, where over 1000 exploited Bangladeshi workers died in a textile factory fire, the “Clean Clothes Campaign” targeted big clothing brands connected to the factory, getting many to commit to a compensation fund. A key part of their strategy was to highlight big brands’ role in the disaster and expose the hypocrisy of their ethical codes of conduct.

https://youtu.be/Db8pKj2UmB8

For more information, see “Alternatives to PIL: Campaigning”.