Corporations and Human Rights: Accountability Mechanisms for Resolving Complaints and Disputes

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Corporations and Human Rights Accountability
Mechanisms for Resolving Complaints and Disputes

• Paradigms of Dispute Management
• F. Peter Phillips
• International Institute for Conflict Prevention
  and Resolution
• April 11, 2007

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Overview

• Who is CPR Institute
• Overview of Consensual Conflict Resolution
  Mechanisms
• Some Taxonomies of Conflict Resolution
• Some Maxims for Multiple Stakeholders and Public
  Policy Decision Making

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CPR Institute

• Non-profit founded in 1979 by Corporate General
  Counsel
• Supported by Member Contributions from 400
  Corporate Law Departments and Global Law Firms
• Mission Innovation and Quality in Conflict
  Prevention, Management and Resolution

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Overview of Conflict Resolution Mechanisms
COMPLETE OUTCOME CONTROL BY PARTIES
NOOUTCOME CONTROL BY PARTIES
NON-BINDINGADR PROCESSES
BINDING - ADJUDICATIVE ADR PROCESSES
LITIGATION TRIAL
DIRECTNEGOTIA-TIONS
MINI-TRIAL
MEDIATION
EARLY NEUTRAL EVALUATION
SUMMARY JURY TRIAL
BRACKETED ARBITRATION
PRIVATE JUDGING
ARBITRATION
FINAL OFFER ARBITRATION
MED/ARBNEUTRAL EXPERTFACT FINDING
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Two Contrasting Approaches

• The Oranges
• Private and Confidential
• Interest-Driven
• Creating Value
• BATNA
• The Mandarin
• Balance, Harmony
• Socially-Driven
• Legal Solution
• Private Interests of Questionable Value

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Corrective vs. Preventive

• Looking Backwards to Remedy a Past Wrong
• Looking Forward to Prepare for a Better
  Relationship
• Transformative Mediation in Employment Systems

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Rights-Driven vs. Interest-Driven

• Vindication of a Generally Recognized Right
  Assertion of Generally Recognized Obligation
• Rights and Obligations Determined by Parties Own
  Commercial (or Political or Reputational, etc.)
  Interests

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Institutional vs. Ad Hoc

• The Credentialing of Institutional Endorsement
• The Flexibility of Immediate Convening in
  Response to a Need

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External vs. Subjective Standards

• Private Interests or Public Interest?
• The right outcome or the outcome the parties
  choose?
• Courts or Guilds?

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Incident vs. Relationship

• Fender-Bender vs. Employment
• Conflict Resolution vs. Contract Formation

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Public vs. Private

• Confidentiality
• Privilege
• Providing a Safe Environment for Creative
  Problem-Solving (No Notes, No Score-Keeping)
  vs. Ensuring the Public of the Transparency of
  the Process

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The Hurt Impossible to Mend

• Apology
• Forgiveness
• MIT Mediation

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Maxims for Multiparty and Public Policy Disputes

• Forseeability No Perfect Contracts
• Disputes are an Attribute of Multi-party Projects
  
• Early, Even and Frictionless Information Exchange
  Assists Problem Identification
• Build Information Exchange and Negotiation Into
  the Process (DRBs)
• No Barriers to Entry, No Initial Filter

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More Maxims

• Balance of Power/Balance of Frustration
• Consensus Building No Voting
• Inevitability of Coalitions
• Offensive
• Defensive
• n 1 at the Table
• Agenda Creation and Discipline
• Traffic-Cop, School-Marm
• Repository of Confidential Interests
• Bearer of Tidings

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• International Institute for Conflict Prevention
  and Resolution
• 575 Lexington Avenue
• New York, NY 10022
• 212-949-6490
• www.cpradr.org