No one will be surprised to hear that I am a strong believer in the value of mediation. That is particularly true in the context of legitimate human rights claims. Where a person has been the victim of a breach of their human rights, there are often genuine and significant impacts on their mental health, very personal issues to be addressed, and a strong desire on the part of one or both parties to avoid the public spotlight. All of those factors make a mediated settlement attractive; in fact, the desire to keep private matters private is also a good reason to arbitrate such claims.
I recognize that in some cases, a victim of human rights breaches does not want to be silenced; hence the recent backlash against confidentiality or non-disclosure agreements. However, some complainants do not want their story to be public, and will be far more likely to proceed with mediation or arbitration than a public hearing in a court or tribunal.
Controlling the Process
The beauty of ADR is that it allows the parties to design a process that works for them. This can include mediation, arbitration, or med-arb, which combines both. Either way, they will be able to
- Avoid the delays inherent in the court or tribunal process,
- Choose their “judge” or mediator and select someone with the right expertise and temperament for the case,
- Determine the steps in litigation, such as disclosure of documents and examinations for discovery, and
- Streamline any hearing through the strategic use of affidavit evidence.
Simply put, our court system and tribunal process use a one size fits all approach, but parties who select ADR can determine how the matter will be dealt with, from start to finish. And speaking of finish…