Mediation, ordinarily a voluntary dispute resolution process, is private, informal, confidential, and nonbinding. A mediator, as a professional neutral facilitator, assists disputing parties in reaching an agreement to settle part or all of their differences. This process allows the parties to self-determine the outcome without the formal rules of evidence or procedure used in a court proceeding.
The actual conduct of the mediation may vary depending upon the style of the mediator and the nature of the conflicts. For disputes involving business and human rights (“BHR”) violations, these conflicts are known to frequently arise from commercial activities where harm to individuals, communities, or workers infringes on internationally recognized rights and standards (e.g., UN Guiding Principles on Business and Human Rights, OECD Guidelines, ILO Declaration on Fundamental Principles and Rights at Work).[1]
This article aims to highlight the value of co-mediation in BHR-related disputes, where evaluative and facilitative styles of mediation that are commonly used in legal and transactional cases can complement relational mediation styles typically used in community and workplace conflicts to create a more fair, collaborative, and inclusive dispute resolution experience that benefits all stakeholders.
What Makes Mediating BHR-Related Disputes Different?
BHR-related disputes generally do not have a one-size-fits-all mediation style. Notable types of BHR-related disputes include conflicts relating to labor and employment (e.g., forced labor / modern slavery, child labor, inadequate working conditions, wage issues); environmental and community impact (e.g., harm to local populations through environmental damage); land and indigenous rights (e.g., ownership and cultural rights); and corporate accountability and governance issues (e.g., harms due to lack of remedy for victims, failure to conduct environmental and human rights due diligence). The mediation style used depends on whether the goal is to reach a settlement, establish accountability, or preserve a long-term relationship.
In most cases, facilitative mediation helps parties to better understand each other through guided communications, which are commonly used in labor disputes, supply chain conflicts, and early-stage grievances. However, rights-based violations or significant power imbalances can hinder progress through this approach and thereby require the mediator to take a more active role in assessing claims and predicting legal outcomes by way of reality-checking the parties’ positions through evaluative mediation. Another style known as transformative mediation focuses on empowerment and nonfinancial needs and interests—most often centered in corporate-community conflicts and indigenous rights issues—and aims to address deeper human rights concerns like restoring dignity and establishing mutual understanding. Lesser-known mediation styles that are unique to BHR-related disputes include rights-based and interests-based mediations, where special attention is given to internationally recognized rights and standards and considerations for the broader nonfinancial and social interests of affected parties.
Benefits of Co-Mediation in BHR-Related Disputes
Co-mediation by multiple mediators can add value in BHR-related disputes in a variety of ways. When complex legal, technical, financial, societal, and cultural considerations are present, a co-mediation team can bring different strengths and a more holistic approach to communicating with different stakeholders with varying interests and needs. For instance, one mediator with deep legal expertise or industry knowledge can offer an evaluative style of mediation, while another mediator with high emotional intelligence competency can focus on behavior or relationship management. This complementary approach allows for more nuanced and sensible engagement between and among the various stakeholders.
Another major benefit to co-mediation is its ability to bridge cultural, linguistic, and other relevant gaps. Cross-border commercial disputes frequently involve parties from different traditions and worldviews, negotiation styles, and languages. Having mediators from different cultural backgrounds can help reduce misunderstandings, build trust, and ensure that perceptions of neutrality and legitimacy remain intact among all the parties.
Whether a dispute is cross-border or not, parties that are sensitive about a mediator’s background, viewpoint, and cultural knowledge can benefit from having a co-mediation team with mixed mediation styles to balance those concerns and make the process feel more equitable. Co-mediators can also collectively test ideas, challenge assumptions, and refine strategies in real time.
However, it is important that the co-mediators are complementary in style and aligned in strategy. This requires strong coordination; a well-matched and collaborative co-mediation team can deepen trust, improve communication, and increase the chances of a durable settlement.
In summary, a mediator’s ability to effectively transition between the different mediation styles in BHR-related disputes can significantly impact process and outcomes. The goal is to balance fairness and practical resolution, and the holistic perspective and well-rounded approach that co-mediation brings can help the parties to reach an agreement that is both profitable and principled for all stakeholders—and in a language that understands both the business needs of global commercial operations and the personal needs of communities that support them.
A useful resource for understanding BHR issues is the Business and Human Rights Centre, a global organization and knowledge hub that works alongside partners and allies to deliver comprehensive BHR-related news in multiple languages. ↑
