Mediation As Problem-Solving

The Organizational for Economic Cooperation and Development (OECD) is trying to hold multinational corporations to appropriately high standards of corporate social responsibility. OECD member states include thirty of the major economies of the world. Ten years ago, they adopted guidelines regarding human rights, environmental protection, the rights of workers and child protection. Now they are in the throes of a ten year review. Every member country has appointed an NCP -- a National Contact Point -- to investigate claims that multinational corporations headquartered in their country, or their subsidiaries wherever they might be located, have violated the guidelines. The NCPs have investigated as best they can (often with very limited staff and budget). The assumption is that being called out by a national government will push multinationals to correct whatever guideline infractions they or their subsidiaries may have committed. Unfortunately, it has been hard for the NCPs to complete many of the needed investigations, particularly those filed by unions or NGOs in far off corners of the world. On some occasions, NCPs have not found sufficient evidence that the guidelines have been violated, but there are clearly circumstances that needed attention. At a recent meeting of all the NCPs and some of their constituent organizations (including their Trade Union Advisory Group, their Business and Industry Advisory Group, and OECDWatch) the NCPs were reminded that their goal should be to rectify inappropriate practices, not just determine whether the guidelines have been violated. More generally, the NCPs were urged to step back from their adjudicatory (or investigatory) efforts and build their problem-solving capabilities. In particular, they were urged to take their mediation mandate seriously.

I am very supportive of a "problem-solving" view of mediation. In too many situations, mediation is viewed as the last step in adjudication (i.e. when impasse has been reached), rather than as the first step in a collaborative effort to head off a problem or work out a creative solution. When a complaint is filed, an NCP must determine whether the charges should be taken seriously. It sometimes does this by asking its national embassy to "make inquiries" about the reputation of the company against whom a complaint has been filed. Then, it might follow up with a call to the company and ask for "its version" of the story. In short, the NCP tries to determine whether the company has, in fact, violated the OECD corporate social responsibility guidelines. They proceed this way because their primary goal is to determine the legitimacy of the claims that are brought. If, however, the NCP's goal were to correct inappropriate practices or implement appropriate remedies, it might, instead, select a qualified mediator -- located in the place where the infraction presumably occurred -- to meet informally with the relevant parties and see what might be worked out. The more informal the interaction, the less likely the parties are to overstate their claims or react defensively. If such problem-solving fails, the NCP can always revert to its investigatory role.

If you were a company accused of violating OECD guidelines, wouldn't you prefer to meet privately with a neutral party (who would keep what you said confidential) than to have to defend yourself in a public way as an official investigation gets underway? From the standpoint of preserving your corporate image, mediation is certainly preferable. If you were a trade union or an environmental NGO concerned about the actions of a company in your area, wouldn't you prefer to have a professional mediator bring everyone together to respond to your concerns than to wait a year or longer while an invisible agency (often in another part of the world) determines whether OECD guidelines have been violated and then writes a report?Adjudication in the absence of enforcement (and that is the situation in globally) won't guarantee change. Mediation leading to voluntary agreements will almost always guarantee compliance with whatever has been worked out.

Mediation as problem-solving requires three things: (1) a willingness on the part of all the relevant stakeholders to work together to resolve the problem or deal with the situation; (2) the availability of a trusted "neutral" with sufficient knowledge and skill to manage difficult conversations; and (3) an agreement on procedural ground rules (i.e., confidentiality, timetable, agenda, good faith effort, etc.). OECD and its NCPs are seriously considering emphasizing problem-solving mediation in the years ahead.