Dispute mechanism

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A dispute mechanism is a structured process [1] that addresses disputes or grievances that arise between two or more parties engaged in business, legal, or societal relationships. Dispute mechanisms are used in dispute resolution, and may incorporate conciliation, conflict resolution, mediation, and negotiation.

Dispute resolution is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution, although conflicts are generally more deep-rooted and lengthy than disputes. Dispute resolution techniques assist the resolution of antagonisms between parties that can include citizens, corporations, and governments.

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome.

Conflict resolution methods and processes involved in facilitating the peaceful ending of conflict and retribution

Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of conflict and retribution. Committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest of group and by engaging in collective negotiation. Dimensions of resolution typically parallel the dimensions of conflict in the way the conflict is processed. Cognitive resolution is the way disputants understand and view the conflict, with beliefs, perspectives, understandings and attitudes. Emotional resolution is in the way disputants feel about a conflict, the emotional energy. Behavioral resolution is reflective of how the disputants act, their behavior. Ultimately a wide range of methods and procedures for addressing conflict exist, including negotiation, mediation, mediation-arbitration, diplomacy, and creative peacebuilding.

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Otherwise known as grievance mechanisms, dispute mechanisms are typical non-judicial [2] in nature, meaning that they are not resolved within the court of law. According to research produced by the non-judicial grievance mechanism task force of John Ruggie, Special Representative of Business and Human Rights to the United Nations, those who design and oversee non-judicial mechanisms should acknowledge core human rights processes defined by "all core UN human rights treaties.” [3]

Dispute mechanisms comprise a way for socially responsible businesses to meet requirements of corporate responsibility-related agreements or pacts, reduce risk while capacity-building or developing internationally, and assist larger processes that create positive social change.

Social responsibility is an ethical framework and suggests that an entity, be it an organization or individual, has an obligation to act for the benefit of society at large. Social responsibility is a duty every individual has to perform so as to maintain a balance between the economy and the ecosystems. A trade-off may exist between economic development, in the material sense, and the welfare of the society and environment, though this has been challenged by many reports over the past decade. Social responsibility means sustaining the equilibrium between the two. It pertains not only to business organizations but also to everyone whose any action impacts the environment. It is a concept that aims to ensure secure healthcare for the people living in rural areas and eliminate all barriers like distance, financial condition, etc. This responsibility can be passive, by avoiding engaging in socially harmful acts, or active, by performing activities that directly advance social goals. Social responsibility must be intergenerational since the actions of one generation have consequences on those following.

Dispute mechanisms are an increasingly effective tool for establishing communication channels between businesses and communities. When successful, they offer a trusted way for local peoples or communities to voice and resolve concerns related to development projects, while providing companies with transparent, effective ways to address community concerns. According to a publication by the Compliance Advisor/Ombudsman of the World Bank Group, "locally-based grievance resolution mechanism(s) provide a promising avenue by offering a reliable structure and set of approaches where local people and the company can find effective solutions together." [4] Generally, it is agreed that a well-functioning grievance mechanism should:

The Office of the Compliance Advisor/Ombudsman (CAO) is a recourse mechanism for projects supported by the International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA) of the World Bank Group. It was established in 1999 and is based in Washington, D.C.

The World Bank Group (WBG) is a family of five international organizations that make leveraged loans to developing countries. It is the largest and most well-known development bank in the world and is an observer at the United Nations Development Group. The bank is headquartered in Washington, D.C. in the United States. It provided around $61 billion in loans and assistance to "developing" and transition countries in the 2014 fiscal year. The bank's stated mission is to achieve the twin goals of ending extreme poverty and building shared prosperity. Total lending as of 2015 for the last 10 years through Development Policy Financing was approximately $117 billion. Its five organizations are the International Bank for Reconstruction and Development (IBRD), the International Development Association (IDA), the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA) and the International Centre for Settlement of Investment Disputes (ICSID). The first two are sometimes collectively referred to as the World Bank.

Characteristics

According to the Business and Human Rights SRSG, such mechanisms must at a minimum be:

Types

Uses

Well-designed grievance mechanisms have multiple and sometimes divergent points of application, but are typically used by monitoring, auditing, project oversight, supply chain management, and stakeholder engagement. Grievance mechanisms can deal with most kinds of grievances (bar those raising criminal liability), including – but by no means limited to – those that reflect substantive human/labour rights concerns. As such, rights-compatible mechanisms must work to integrate human rights norms and standards into their processes and are based on principles of non-discrimination, equity, accountability, empowerment and participation.

See also

Arbitration Mediated dispute resolution method

Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons, which renders the "arbitration award". An arbitration award is legally binding on both sides and enforceable in the courts.

Conflict resolution is any reduction in the severity of a conflict. It may involve conflict management, in which the parties continue the conflict but adopt less extreme tactics; settlement, in which they reach agreement on enough issues that the conflict stops; or removal of the underlying causes of the conflict. The latter is sometimes called "resolution", in a narrower sense of the term that will not be used in this article. Settlements sometimes end a conflict for good, but when there are deeper issues – such as value clashes among people who must work together, distressed relationships, or mistreated members of one's ethnic group across a border – settlements are often temporary.

Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that she/he manages the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.

Related Research Articles

Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it has 47 parties—46 states and the European Union. All of the ratifying states are in Europe and Central Asia. The EU has begun applying Aarhus-type principles in its legislation, notably the Water Framework Directive. Liechtenstein and Monaco have signed the convention but have not ratified it.

A national human rights institution (NHRI) is an independent institution bestowed with the responsibility to broadly protect, monitor and promote human rights in a given country. The growth of such bodies has been encouraged by the Office of the United Nations High Commissioner for Human Rights (OHCHR), which has provided advisory and support services, and facilitated access for NHRIs to the UN treaty bodies and other committees. There are over 100 such institutions, about two-thirds assessed by peer review as compliant with the United Nations standards set out in the Paris Principles. Compliance with the Principles is the basis for accreditation at the UN, which, uniquely for NHRIs, is not conducted directly by a UN body but by a sub-committee of the International Coordinating Committee of National Human Rights Institutions (ICC). The secretariat to the review process is provided by the National Institutions and Regional Mechanisms Section of the OHCHR.

Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists. Essentially, justiciability in American law seeks to address whether a court possesses the ability to provide adequate resolution of the dispute; where a court believes that it cannot offer such a final determination, the matter is not justiciable.

State Corporation Commission (Virginia)

The State Corporation Commission, or SCC, is a Virginia (USA) regulatory agency whose authority encompasses utilities, insurance, state-chartered financial institutions, securities, retail franchising, and railroads. It is the state's central filing office for corporations, limited partnerships, limited liability companies and Uniform Commercial Code liens.

Financial Ombudsman Service organization

The Financial Ombudsman Service is an ombudsman in the United Kingdom. It was established in 2000, and given statutory powers in 2001 by the Financial Services and Markets Act 2000, to help settle disputes between consumers and UK-based businesses providing financial services, such as banks, building societies, insurance companies, investment firms, financial advisers and finance companies.

Project governance is the management framework within which project decisions are made. Project governance is a critical element of any project, since the accountabilities and responsibilities associated with an organization’s business as usual activities are laid down in their organizational governance arrangements; seldom does an equivalent framework exist to govern the development of its capital investments (projects). For instance, the organization chart provides a good indication of who in the organization is responsible for any particular operational activity the organization conducts. But unless an organization has specifically developed a project governance policy, no such chart is likely to exist for project development activity.

Constitution of Kosovo

The Constitution of Kosovo, refers to the supreme law of the Republic of Kosovo. Article four of the constitution establishes the rules and separate powers of the three branches of the government. The unicameral Assembly of the Republic exercises the legislative power, the executive branch led by the President and the Prime Minister which are responsible for implementing laws and the judicial system headed by the Supreme Court.

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective term for the ways that parties can settle disputes, with the help of a third party. However, ADR is also increasingly being adopted as a tool to help settle disputes alongside the court system itself.

The Universal Periodic Review (UPR) is a mechanism of the United Nations (UN) Human Rights Council (HRC) that emerged from the 2005 UN reform process. Commonly referred to as the UN-UPR, it was established by General Assembly resolution 60/251 of 3 April 2006, the UN-UPR periodically examines the human rights performance of all 193 UN Member States. It is intended to complement, not duplicate, the work of other human rights mechanisms, including the UN human rights treaty bodies.This is the first international human rights mechanism to address all countries and all human rights. The Working Group on the UPR, which is composed of the HRC's 47 Member States and chaired by the HRC President, conducts country reviews.

Ombudsman Official representing the interests of the public

An ombudsman, ombudsperson, ombud, or public advocate is an official who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. The ombudsman is usually appointed by the government or by parliament but with a significant degree of independence. In some countries, an inspector general, citizen advocate or other official may have duties similar to those of a national ombudsman and may also be appointed by a legislature. Below the national level, an ombudsman may be appointed by a state, local, or municipal government. Unofficial ombudsmen may be appointed by, or even work for, a corporation such as a utility supplier, newspaper, NGO, or professional regulatory body.

A grievance is a formal complaint that is raised by an employee towards an employer within the workplace. There are many reasons as to why a grievance can be raised, and also many ways to go about dealing with such a scenario. Reasons for filing a grievance in the workplace can be as a result of, but not limited to, a breach of the terms and conditions of an employment contract, raises and promotions, or lack thereof, as well as harassment and employment discrimination.

Whistleblower protection in the United States

A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The Whistleblower Protection Act was made into federal law in the United States in 1989.

The United Nations Guiding Principles on Business and Human Rights (UNGPs) is an instrument consisting of 31 principles implementing the United Nations ‘Protect, Respect and Remedy’ framework on this issue of human rights and transnational corporations and other business enterprises. Developed by the Special Representative of the Secretary-General (SRSG) John Ruggie, these Guiding Principles provided the first global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity, and continue to provide the internationally accepted framework for enhancing standards and practice regarding business and human rights. On June 16, 2011, the United Nations Human Rights Council unanimously endorsed the Guiding Principles for Business and Human Rights, making the framework the first corporate human rights responsibility initiative to be endorsed by the United Nations.

The Office of the Ombudsman was established in 1962 under the Parliamentary Commissioner (Ombudsman) Act 1962. The term "Ombudsman" is Swedish and basically means "grievance person". The primary role of the Ombudsman in New Zealand is to investigate complaints against government agencies. In 1983 the responsibilities were extended to include investigation of agencies that fail to provide information requested in accordance with the Official Information Act. The Ombudsman also has responsibility to protect whistleblowers and investigate the administration of prisons and other places of detention.

Grievance Redressal is a management- and governance-related process used commonly in India. While the term "Grievance Redressal" primarily covers the receipt and processing of complaints from citizens and consumers, a wider definition includes actions taken on any issue raised by them to avail services more effectively.

Internet intermediary refers to a company that facilitates the use of the Internet. Such companies include internet service providers (ISPs), search engines and social media platforms.

Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict

The Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict (OSRSG-SVC), is an office of the United Nations Secretariat tasked with serving the United Nations' spokesperson and political advocate on conflict-related sexual violence, the Special Representative of the Secretary-General on Sexual Violence in Conflict (SRSG-SVC). The Special Representative holds the rank of Under-Secretary-General of the United Nations and chairs the UN Action Against Sexual Violence in Conflict. The mandate of the SRSG-SVC was established by Security Council Resolution 1888, introduced by Hillary Clinton, and the first Special Representative, Margot Wallström, took office in 2010. The current Special Representative is Pramila Patten of Mauritius, who was appointed by United Nations Secretary General António Guterres in April 2017. The work of the SRSG-SVC is supported by the United Nations Team of Experts on the Rule of Law/Sexual Violence in Conflict, co-led by the Department of Peacekeeping Operations (DPKO), Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Development Programme (UNDP), also established under Security Council Resolution 1888.

References

  1. ↑ "ACCESS Facility database of non-judicial grievance mechanisms" . Retrieved 2013-12-13.
  2. 1 2 "0812861" (PDF). Retrieved 2010-05-17.
  3. ↑ These principles, based on more specific guidance developed for companies, apply across non-judicial mechanisms of different kinds. See http://www.business-humanrights.org/Links/Repository/308254/ link_page_view.
  4. ↑ "A Guide to Designing and Implementing Grievance Mechanisms for Development Projects". Commdev.org. Archived from the original on 2009-08-17. Retrieved 2010-05-17.
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