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.

The Sovereignty Claims of Indigenous Peoples

Think about it from their perspective. Assume you are part of a group that has inhabited a place for at least a thousand years. Your ceremonies and traditions date back a lot farther than those of the interlopers who now control every aspect of your life.  Your people have been connected to that particular place for all of recorded history.  Yet, now, the national government that surrounds you wants to dictate what you can and cannot do with your land and how your children should be educated.. That national government has sold the mineral rights out from under you (and kept all the money), polluted the waters you depend on, and stripped the forest that has always been your primary source of food. Wouldn't you be angry?

There are more than 300 million indigenous people in the world in this situation. There are at least 5000 different first nations in more than 70 countries. Most of these groups are fighting for their survival -- arguing that they should have control over their ancestral lands and be allowed to decide what happens within their borders.  In most instances, though, their sovereignty claims have been rejected.  In the United States, many Native Americans live in the worst economic conditions in the country.  They do not control what happens in their lives. While some Americans blame the tribes for their current circumstances, there can be no question that the American government has refused to allow the Indians to control their land and water and has not lived up to the promises that the American government has made over the past several hundred years.  In Australia, Latin America, Asia and in parts of Europe, First Peoples struggle for recognition and fair treatment.  While the United Nations has, after 25 years of discussion, finally passed a non-binding Declaration on the Rights of Indigenous Peoples, the United States, Canada, Australia and New Zealand, all with significant indigenous populations voted against it.  While the Declaration talks about recognition, it provides no imperative for the recognition of  the sovereignty claims of First Nations.

In Canada, First Nations control the land (reserves) on which they live.  They have rights of various kinds (both through treaties and constitutional mandates) that fall short of sovereignty, but guarantee greater independence than almost anywhere else in the world.  The Sarayaku in Ecuador, the Mapuche in Chile, the Amerindians in Guyana, the Adivasi in India, and the Yonggom in Papue New Guinea have far fewer protections.  In Israel, the 46 Bedouin communities in the Negev are not even listed on official government maps and their long-standing  land claims have never been addressed by the Israeli Supreme Court. 

Sovereignty (i.e. full recognition of their status as independent states) may be beyond what

First Nations can hope for in this era, but greater autonomy -- and perhaps even independence with regard to a range of resource, education, and justice issues-- ought to be negotiable.  

I don't see, though, how the sovereignty claims of First Peoples can be resolved in the courts of the very countries that have preempted their rights.  And, I don't think it is very likely that existing national governments will agree to have these claims adjudicated in international courts. To do so would mean allowing international bodies to contravene national sovereignty. (We've heard that argument a lot in the United States whenever questions of the World Court's jurisdiction are raised). That leaves the entire burden on individual First Nations to mobilize political support (both locally and globally). Given their lack of financial resources and their unwilling to engage in domestic politics (which would put them in the same position as any other interest group in a country when what they want is recognition of their sovereign rights), this is not a promising strategy. An international mediation approach might be worth considering.  In the same way that mediation has been used to resolve war and peace issues between contending nations as well as among waring factions within a country, it could be used to provide an in informal context in which national governments and First Nations could explore alternatives to full sovereignty.   

See Lawrence Susskind and Isabelle Anguelovski, Addressing the Land Claims of Indigenous Peoples published by the MIT Program on Human Rights and Justice for case studies of efforts by 14 indigenous peoples around the world to pursue their land claims.

(This can be downloaded for free at http://mit.edu/phrj/publications-phrj/indigenous-peoples.pdf)