Relax the Grip - A Role for Mediation in Business and Human Rights Disputes

Have you ever tried to climb a palm tree? I did once. Try, that is. Here’s the thing about it. You look up that tall, straight trunk to the coconuts that hang under the palm fronds – your tantalizing objective. And so you launch yourself upwards. But the further you move up the trunk the more you feel out of your element, cut off from your pedestrian comfort zone. Fear seeps in.

And so does a basic human instinct: to hug the tree. Surely, your gut tells you, if I just hold tight I’ll be safer, more in control, and that way I can inch my way upwards, steadily but surely to my goal.

Wrong. Before you know it you are wrapped around the trunk, can’t go up and don’t know how to get down without serious skin burns. The key to reaching your objective? Relax your grip, lean back, extend your arms. In essence, by letting go a bit – reducing your sense of control over the process – you actually increase your chances of achieving your objective.

So what’s my point, you ask. Well, often when I talk to or hear about companies that are facing a growing conflict with communities, it reminds me precisely of someone trying to climb a palm tree.

The company ultimately wants a solution – it spies the metaphorical coconuts at the top of the trunk and wants to get there. But if publicity around the conflict starts to escalate or the issues get more complex, it starts to feel exposed and the control instinct sets in.

Staff dealing with community relations get pushed to the side and PR and legal take over. Communication becomes about one-way messaging rather than two-way dialogue. Information is ever more controlled and ultimately the hatches are battened down. The company goes into full tree-hug mode. And the tighter they hug, the less the chance of reaching a solution.

Sure, if it ends up in a law court they might ultimately win. So might the community. Either way, winning a law suit doesn’t equate with solving a conflict. One company I talked to had a mining project where the lawyers were tackling the 7th lawsuit from communities. They had won 6 of the cases, but the guys at corporate were scratching their heads as the dispute just worsened with each ‘win’. Their guys out at site couldn’t move up the tree, but were still convinced that they had the right technique to do so. The evidence suggested the contrary.

In conflicts like this, as the tactics of confrontation and even litigation proceed, the prospect of meaningful dialogue recedes. Yet it can be precisely by seeking genuine dialogue in a spirit of partnership that companies can increase the chances of resolving the dispute. That is, by reducing its sense of control over the conflict-handling process, the company can increase its chances of finding durable solutions.

Of course, it takes two to tango. That means that the communities involved must be open to dialogue too. Communities are just as able to find themselves hugging the metaphorical palm tree, locked into protest and campaign or multi-year lawsuits, unsure how to climb up and unable to back down. They may lack confidence in how dialogue would work or worry that they will be manipulated into bad solutions by a more ‘powerful’ company. They may fear that engagement will mean giving up on their basic human rights. And they may lack trusted advice on how the option of dialogue compares with the available alternatives in terms of process and possible outcomes. All those fears need to be understood and addressed. (For those interested, I explore them further in a recent article on dispute resolution in the context of business and human rights.)

In some situations, it takes a third party mediator to help both company and communities find a way forward and build trust in the dialogue process. Mediation involves a neutral third party, accepted by both sides, facilitating dialogue between them. His or her role includes enabling all concerned to speak freely, to engage on a fair basis and without fear, and to explore solutions to the dispute. Only the parties can decide whether to agree on a particular outcome and whether they want to bind themselves to that.

When conflict between BHP Billiton and local communities escalated at the Tintaya copper mine in Peru, a local mediator played a crucial role in helping both sides build dialogue tables to address the issues in dispute, including human rights. Those dialogue tables are still running today. It has been suggested to me that the sale of the mine to Xstrata in 2006 may not have gone through - or at least only at a reduced price - had those processes not been in place.

In the Niger Delta, Chevron and local communities have built dialogue processes through the facilitation of the New Nigeria Foundation, supported by the US-based Consensus Building Institute. These dialogues have helped company and communities address concerns, agree on memoranda of understanding, and establish mechanisms for addressing future grievances. All sides recognise that this is the start, not the end, of a new mode of engagement.

Moreover, third party involvement is not always needed to resolve such disputes, particularly if they are addressed before they compound and escalate. Inco (now Vale Inco) found itself at odds with indigenous communities round a planned nickel mine in Canada over the question of shipping ore through the winter ice and the implications for the communities’ safety, culture and livelihoods. The company was able to build direct and fruitful dialogue over time by ensuring that people with real credibility on both sides were at the heart of the efforts.

The key in these and other examples is the recognition that engaging in meaningful dialogue, either directly or through effective mediation, may be more fruitful in resolving conflict and remedying harms than battling out differences in the media or in court. It may feel like losing control in the short term. Partnership in a process dilutes your ownership of the process. But repeat examples suggest that it heightens the opportunity for both company and community to shape and achieve sustainable outcomes.

In a recent article in Ethical Corporation Magazine, Martyn Day, a renowned UK litigator for communities, attests to the benefits it can bring to those who feel their rights have been harmed. In a recent interview, the General Manager of Vale Inco Newfoundland and Labrador likewise bears witness to the value it can bring a company.

Lawsuits have their place and their distinct purposes, be you company or community. And protest is too often a necessary precursor for communities to get companies to take them seriously. But rarely does either provide sustainable solutions for company-community relations. Dialogue - direct or mediated - offers a promising alternative for resolving disputes that is too little recognized and too seldom pursued by companies. It requires them to fight their controlling instincts, release their grip, and lean back from the palm tree. Doing so can bring them within reach of the fruits of success.