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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;
There are situations where an out-of-court settlement is the best option.
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.
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.
In Peru, mediation was used to create dialogue between BHP Billiton and local communities to discuss concerns about pollution and human rights issues.
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.
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;
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.
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.
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.
The negotiators could agree a solution that does not suit the needs of all the people or communities affected.
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.
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.
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;
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.
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.