Website is currently under development. Thank You

Menu

Alternatives to PIL: Negotiation and Mediation

PIL can be a useful tool to secure justice, but it is not the only tool to achieve your objectives.

Before launching a PIL action, it is helpful to consider alternative routes to achieving your objectives;

  • Alternatives could be quicker, less costly, and more effective in securing justice in your circumstances.

There are situations where an out-of-court settlement is the best option.

1

Ways to Settle a Dispute Out of Court

Alternative dispute resolution (ADR) is the name given to ways to settle disputes, without bringing the case to a court at all.

There are many different types of ADR, but the main ones are mediation or negotiation.

 

a) Mediation

Mediation means there is an intervention of a neutral third person (a mediator) who will try to bring both parties to a decision they can agree on (this process can also be called conciliation).

The mediator will do this by organising meetings and creating dialogue between the parties.

The mediation can be done by a non-professional, a judge, an institution (e.g. the National Contact Point of the OECD), or an ombudsman.

Example
In Peru, mediation was used to create dialogue between BHP Billiton and local communities to discuss concerns about pollution and human rights issues.

 

b) Negotiation

Negotiation is a way for the parties to discuss in private the problems they are facing and come to a solution agreeable to both. Negotiation is not necessarily facilitated by a third-party but the parties could be represented by lawyers or other delegates.

This has similar objectives to mediation, but is less formal.

2

Advantages of Alternative Dispute Resolution

The goal of these processes is to find a solution that suits both parties. Each party makes some compromises and tries to reach a decision that is in the interests of both parties.

The main advantages of ADR are;

  • They take less time and money than going to court.
  • The dispute can be dealt with in private, avoiding publicity if this is not appropriate.
  • They give rise to less conflict. This is important if you want to maintain a good relationship with the other party (i.e. this may be the case if a company provides a lot of jobs and benefits to your community, but you want it to change one aspect of its behaviour).
  • You can reach compromises or solutions benefitting both parties that may not be available in a court case.
  • If the other party has not committed a legal wrong (i.e. broken the law), ADR still allows you to try to change its behaviour.
3

Risks of Alternative Dispute Resolution (and how to avoid them)

While ADR can be a useful tool for securing justice, it may not be the best option in your case. Sometimes the formal legally binding court judgement is needed to achieve your objectives.

Consider the following risks and ways in which they can be avoided;

In ADR, the stronger party (such as a company with more resources) can dominate the process, pressuring you to accept an unjust solution or compromise.

  • When deciding to engage in ADR, it is important to be well-advised and prepared, in order to obtain a solution where the other party makes meaningful compromises and significant commitments.

The company takes advantage of the negotiation or mediation process to publicise its actions (greenwashing). This can make the company look like it is doing the right thing when it isn’t.

  • You can counter this by having an effective media strategy of your own, telling your side of the story.

Without legal processes of enforcement, the solution agreed may be ignored by the other party. Or the party may deny having made commitments during the negotiations.

  • To avoid this outcome, make sure that all decisions taken during the mediation or negotiation are in writing, and are signed by both parties. This can give agreements legal force, meaning you can take the party to court if it breaks the agreement.
  • An effective media strategy, publicising the agreements and the party’s breach, can help avoid this outcome.

The negotiators could agree a solution that does not suit the needs of all the people or communities affected.

  • To avoid this, make sure all the people affected can participate in all stages of the process, and are able to review the proposed solutions before they are agreed to.

If a party is hostile to you and your community, there ADR will likely be unsuccessful. In fact, trying to begin negotiations could be dangerous and should be avoided.

 

While some of the risks of ADR can be avoided, when the above risks are high, it may be better to consider going to court or launching a campaign instead.

4

What Could I Achieve through Mediation and Negotiation?

The first objective of ADR is to ensure that the other party stops the actions complained of.

The next step is to draft an action plan with the opposing party, and other parties affected by the case (e.g. neighbouring communities), that seeks to resolve the problems created by their actions, step-by-step.

  • For example, if a company is polluting a water source, you can agree on an action plan in which the company would commit to stopping the actions that led to the pollution. You would then seek to remedy the damages this pollution caused. Finally, you would agree on measures to monitor the situation to prevent any future pollution. This could include, for instance, an action plan for the company to preserve the environment.

Example
In Nigeria, the New Nigeria Foundation (a mediator) has helped reach agreements between big oil companies and local communities. This includes the implementation of development projects as a remedy for communities affected by pollution.

If appropriate, compensation can even be agreed to in mediation and negotiation processes.

As ADR is an informal process, there is no routine mechanism of enforcement. Instead, the implementation of an agreement often depends on goodwill by the parties.

But consider the following options;

  • NGOs and civil society organizations may be able to monitor the implementation of the agreement.
  • A media strategy or campaign could be used to put pressure on the party to implement the agreement.
  • If the agreement is written and signed by the parties, a court may be able to enforce its implementation as a contract.
5

What if Mediation and Negotiation Aren't Working?

If you have tried to negotiate and enter into negotiations with the other party, but it has failed, you can still bring a legal action in court.

Sometimes powerful parties, such as companies, will try to make you sign documents to agree to only negotiate and give up your right to take legal action. DO NOT sign this type of commitment.

Make the other party understand that if the mediation fails, you will still consider taking legal action. This can be a form of leverage over a more powerful adversary, making them to enter into meaningful mediation or negotiation.

  • In this way, PIL and ADR can compliment each other.

Practical Tip
Often the best plan is to try negotiation or mediation first (it is faster and cheaper), while being prepared to take legal action if this fails or the agreement is not followed.

About Us

Action4Justice is a group of NGO’s united to support public interest litigation worldwide as a means to advance social justice.

Learn more
Our members

We seek partnerships with organizations and communities worldwide who support our goals. Join our network, or volunteer.

Learn more