Mediation in the field of business and human rights to help resolve a conflict between stakeholders/workers upstream a global supply chain and corporate actors in South East Asia with the full participation of civil society (NGOs national and international).
This piece was originally published by the ABA Public Disputes and Consensus Building Committee in June 2021, and is republished with permission. The original article may be found here.
In this article, I describe the mediation of a human rights dispute alleging abusive work conditions and labor practices in a global supply chain. This situation involved several commercial disputes between purchasers, contractors, sub-contractors, and workers from the “informal economy.” The workers’ labor had been purchased without the use of normal employment instruments and access to formal grievance mechanisms. The request for assistance with mediation came from several parties, mainly large transnational law firms and international NGOs. In a series of exploratory conversations, it became clear an international mediator was needed to facilitate, untangle, and try to resolve an international conflict between numerous parties (corporate actors, national and international NGOs, workers, and rights-holders). Please note I have adapted some facts of the dispute and modified others to preserve the confidentiality of the various parties.
The conflict primarily revolved around allegations by NGOs of systematic human rights violations, including alleged abusive working conditions in countries where the rule of law is weak and legal protection of workers does not comply with international norms. The workers and rights-holders were mostly in downstream and often nearly invisible tiers of the supply chain, and suffered what was described by some NGOs as abhorrent working conditions. In some cases, there were allegations the victims were even subjected to practices equivalent to modern slavery and bondage labor.
Mediation was utilized to resolve the disputes, because a clear, short-term legal solution was hindered or prevented by multiple contractual, legal, and enforcement issues. A toxic climate had also developed among the parties, who had lost trust in each other’s abilities to resolve the conflict. The fact patterns were very intricate and complicated with multiple overlapping and contradictory stories. I set out to listen to all the parties in a neutral and objective manner, while expressing some empathy to those who had suffered the alleged harm. The challenge during the first phase of my mandate was to create a “safe space” to listen to all parties, bringing them together as I introduced them to the mediation process. My caucus-based approach created a “safe space” for parties to tell their stories while feeling they were being listened to.
This complex mediation involved many parties, including international corporate law firms representing various business interests which were not necessarily aligned. Several corporations were involved in this dispute, both locally and from the head office. They each had a lawyer or two at the table. The alleged victims and rights-holders (several hundred) could not afford legal representation, and were represented collectively by NGOs (both local and international) with some specific and recognized expertise in the issues at stake. Some individual workers, amongst the most vocal and skilled to tell their story, were selected and brought to the mediation table. The NGOs were instrumental in this