Principles for hearing grievances, and an effective response

AlternativesTO THE HIGH COST OF LITIGATION

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TO THE HIGH COST OF LITIGATION

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VOL. 26 NO. 3 MARCH 2008 ALTERNATIVES 59

HOW AN ENERGY COMPANY TAKES A HUMAN RIGHTS APPROACH

BY JOHN SHERMAN

As National Grid’s in-house counsel for nearly 30 years, I han-dle the company’s U.S. litigation portfolio, manage its U.S.business ethics and compliance program, and more recently,play an active role on its international human rights team.

This article discusses the intersection of business, humanrights, and conflict prevention and resolution.

Not too long ago, it was unusual to see “business” and “hu-man rights” used in the same sentence. Not anymore. Now,many companies are beginning to recognize that they have a re-sponsibility to protect and promote human rights.

This emerging realization has been driven bymany factors: awareness that human rights abuseshave occurred in the wake of a globalized economy;the rise of socially responsible investment funds; andthe increasing willingness of public pension funds,such as Calpers, the New York Public Pension Fund,and the Government Pension Fund of Norway, to usetheir leverage to address human rights issues.

The drivers also include changing legal require-ments, such as the new “ethical culture” requirement of theU.S. Sentencing Guidelines for Organizational Defendants,and the U.K. Companies Act of 2006 requirement that com-panies take into account their actions’ impact on affected stake-holders beyond shareholders. Litigation against companies forcomplicity in human rights violations committed by state secu-rity forces also has played a factor in increased corporate hu-man rights responsibilities.

National Grid is an Anglo-American utility, headquarteredin London, which delivers gas and electricity to millions of cus-tomers throughout the United Kingdom and the northeasternUnited States. It’s the seventh-largest investor-owned utility inthe world, and the second largest in the United States.

National Grid operates under a “Framework for Responsi-ble Business,” which was adopted in 2003 following a dialogueof key internal and external stakeholders about running thebusiness and making decisions on economic, environmentaland social issues. The framework can be found in NationalGrid’s pamphlet, “Our Standards of Ethical Business Con-duct” (available at www.nationalgridus.com/non_html/d2-5_standards.pdf.)

The framework has three broad pieces: sustainable growth,

PRINCIPLES FOR HEARING GRIEVANCES, AND AN EFFECTIVE RESPONSE

BY CAROLINE REES

Consider the following: In June 2000, a truck from the Yana-cocha gold mine in Peru, majority-owned by Denver-basedNewmont Mining Corp., spills 330 pounds of mercury over 25miles of road, 53 miles from the mine site.

Villagers, thinking the mercury is mixed with gold, collect itand take it home to cook on their stoves. Allegations of extensivehealth damage to more than 1,000 people ensue, and a WorldBank report states that the mine delayed reporting the accidentto the national authorities, and downplayed its seriousness.

Protest escalates in light of Newmont’s perceivedinadequate response, and culminates in a class-actionsuit in the United States, which Newmont ultimatelysettles out of court. Three years later, as Newmontlooks ahead to exploring a highly lucrative new areaof their concession, local protest kicks in quickly, ris-ing to such intensity that Newmont is forced to backdown and ask the government to revoke its site per-mit. It emerges that a senior Newmont executive,foreseeing such an outcome, had presciently written:

We have come to this because we have been in denial. Wehave not heeded the voices of those most intimate with ourmine—those who live and work nearby.

While particularly striking, this is far from a rare example ofsuch disputes:

• The U.K. courts accepted jurisdiction in 2000, in a casefiled against Cape plc over compensation for asbestos-relat-ed diseases among the workforce at its former subsidiary’sasbestos mining and milling operation in South Africa. As aresult, Cape settled, finalizing terms about three years later.

• Texaco, now ChevronTexaco, is facing a suit in Ecuador overallegations that pollution from its dumping of toxic waste-water in the rain forest has seriously affected the health andlivelihoods of indigenous communities.

• Nike faced a worldwide public protest in the late 1990sover the use, by its Pakistani suppliers, of child labor tosew footballs.

• Coca-Cola is mired in a dispute in India over whether its

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

ADR’s Role in Responsible Corporate Practices

ADR BENEFITS

(continued on page 62)

(continued on page 60) The author is a fellow at the Corporate Social Responsibility Initiativeat Harvard University’s Kennedy School of Government, in Cambridge,Mass., and an adviser to the U.N. Secretary-General’s SpecialRepresentative for Business and Human Rights, Harvard Prof. JohnRuggie. The views expressed in this article are those of the author aloneand do not imply endorsement by Harvard University, the KennedySchool of Government or Prof. Ruggie.

The author, based in Westborough, Mass., is deputy general counsel ofNational Grid, a United Kingdom-based energy delivery company with alarge business in the Northeast US. This article is an adaptation ofremarks he made on Oct. 28 at Alternatives’ publisher CPR’s Fall 2007Meeting in Boston.

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VOL. 26 NO. 3 MARCH 200862 ALTERNATIVES


Plachimada factory dried up local wellsand polluted water supplies. The case iswith the Indian Supreme Court, thefactory has closed and local jobs havebeen lost.

• Yahoo was subject to an internationalcampaign in 2005, and a U.S. federalsuit last year, alleging its complicity inhuman rights violations, after Chineseofficials imprisoned a journalist forsending an E-mail to which they ob-jected, having obtained his details fromYahoo. Yahoo settled shortly after Rep.Tom Lantos, D., Calif., former chair-man of the House Foreign AffairsCommittee, who died at 80 lastmonth, told the company’s chief exec-utive during a hearing, “While techno-logically and financially you are giants,morally you are pygmies.”

[See Reources box on page 64 for refer-ences to details for each of these conflicts.]

These are just a few examples of thekinds of issues that give rise to disputes—whatever their merits—between differentgroups in society and the companies whoseactivities can affect their lives. Headline-catching cases can have major impacts on acompany’s operations in terms of reputa-tion, brand value, and its ability to realizefuture business opportunities.

Myriad disputes and grievances of a lesshigh-profile nature—for instance, overworking conditions in a supply factory;speeding company trucks in village com-munities; or compensation rates for dis-placed communities—can also harm acompany’s productivity, operational conti-nuity, recruitment and retention of staff,and other factors affecting its success.

PREVENTION IS PARAMOUNT

So what conclusions should companiesand others be drawing from this apparentlitany of grievance, conflict and dispute?Perhaps two.

First, that policies and practices for dis-pute prevention are of paramount impor-tance. Establishing clear standards, compli-ance systems and a means of engaging withdifferent stakeholder groups should consti-tute basic good practice for companies. At

least some of the examples cited abovewould not have happened were suchprocesses in place.

Yet the second conclusion is one of re-alism: Where companies with complex op-erations and supply chains affect the livesof groups or communities in diverse cul-tures and societies, each with their ownchallenges in terms of development, rule oflaw, competing interests and expectations,it would be a miracle if there were no com-plaints, grievances or disputes. While manycan and should be avoided altogether,some will remain inevitable.

The question is how such disputesshould be addressed in order to maximize

the chance of achieving durable solutions.At present, most companies’ and stakehold-ers default position is to look to the oppo-site extremes of the dispute resolution scale.Either they clash in the courts—the mostformal and structured of vehicles for ad-dressing disputes, rooted in law—or theyclash in the context of a public protest orcampaign, the most informal, unstructuredapproach rooted in rhetorical allegations.

Both avenues play a valuable role in anysociety, and are fundamental to a function-ing democracy. Peaceful protest is an essen-tial means of empowerment for civil socie-ty groups and can be an important lever forchange. Equally, an effective, accessible andcredible judicial process provides an irre-

placeable form of public accountabilitybacked with the power of sanction. Indeed,certain kinds of grievance—particularlythose that go to issues of criminal liabilityor other gross abuse—will first and fore-most require court action.

Yet civil society campaigns are costlyand time-consuming and degrade ratherthan build relations between parties whooften must continue to coexist. Nor do thecourts provide a panacea, whether in a so-ciety with well-developed rule-of-law insti-tutions, or a society where such institutionsare weak or absent.

Legal actions typically also are expen-sive, long-winded and compound poor re-lations between the parties. They also re-quire that the issue in dispute be coveredby a point of law, which may well not bethe case with regard to a range of griev-ances that raise issues of social equity andwelfare in different states.

So what of the alternatives that lie be-tween the extremes of litigation and cam-paigning? Is there a place for processes ofconciliation, mediation and arbitration inthis arena? If so, are there particular consid-erations that would need to be taken intoaccount in applying such techniques tothese kinds of conflict, which frequently arecharacterized by large power disparities be-tween the parties, allegations of humanrights abuse, and widespread public interest?

ADR’S POTENTIAL

A project under the Corporate Social Re-sponsibility Initiative of the KennedySchool of Government at Harvard Univer-sity has been attempting to answer thesequestions through a combination of re-search and consultation with experts fromcompanies and NGOs, as well as lawyers,mediators, academics and others. The workto date suggests an important potential rolefor alternative dispute resolution methodsin addressing disputes between companiesand those stakeholders whom their activi-ties impact.

ADR approaches already have foundtraction within a number of national hu-man rights institutions whose statutorymandate allows them to address individualand community grievances against compa-nies as well as government. Examples in-clude the national human rights commis-sions in Ghana, Kenya, Canada and New

Hearing Grievances (continued from page 59)

Be Prepared

The issue: Big business needs to

be ready for inevitable big

conflicts.

The conflicts: When ordinary

manufacturing facilities, supply

chains, and construction proj-

ects butt heads with govern-

ment, national policy . . . or in-

terfere with individuals’ rights

to live in peace.

The solution: ‘Policies and prac-

tices for dispute prevention are

of paramount importance.’

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Zealand; the Hong Kong Equal Opportu-nities Commission, and the ombudsmenin Peru and Namibia. ADR also is familiarin many countries in the context of laborrights disputes, including in the UnitedStates, the United Kingdom, South Africa,Cambodia and Lesotho.

But such institutional points of re-course remain limited in number andscope. Meanwhile, any sensible companywill wish to identify and address grievancesearly, before they compound and escalate.Betting on winning potential suits or suc-cessfully countering hostile campaigns is atbest an optimistic approach to risk man-agement. Efforts to identify and resolvegrievances directly at the operational levelseem only logical.

Add to this the fact that increasingnumbers of companies in the West are nowrequired to have a grievance mechanism inplace for their stakeholders. Corporatemembers of organizations such as the FairLabor Association (see www.fairlabor.org),Social Accountability International(www.sa-intl.org), and the Ethical TradingInitiative (www.ethicaltrade.org) mustcomply with such a requirement, as well ascompanies involved in projects funded bythe World Bank’s International FinanceCorp. (www.ifc.org), or one of the 56banks that ascribe to the so-called EquatorPrinciples (www.equator-principles.com).

SETTING UPA MECHANISM

So if companies are to provide a first-tiergrievance process for their stakeholders—

whether from enlightened self-interest orto meet an external requirement—howshould they go about it? What makes suchmechanisms effective in practice? The Cor-porate Social Responsibility Initiative’swork suggests that a number of key princi-ples must underpin any such mechanism ifit is to provide effective, rights-compatibleand sustainable solutions to grievances.

First, it must carry legitimacy. Whilethis must in part be built up over time, cer-tain fundamentals must be in place fromthe start. The mechanism itself should beset up and overseen jointly by the compa-ny and the stakeholder groups that woulduse it. This helps build confidence that itcan provide a fair process and will not be-come a tool the company can manipulatefor its own ends.

Second, the mechanism must provideease of access. This means making poten-tial end-users aware of its existence, provid-ing easy access points for complaints, in-cluding at least one that is independent ofthe company, and ensuring that barriers interms of language or literacy are removed.

Third, and linked to the question of ac-cess, it is essential that potential users ofthe mechanism have sources of informa-tion and advice that they can trust. Dis-putes between companies and their stake-holders are typically characterized by aconsiderable power disparity. Solutions todisputes that are based on ignorance of oneparty will rarely prove sustainable and mostlikely engender more entrenched griev-ances once realities emerge.

Equally, no party can assess either therange of possible areas for agreement or thelegitimate constraints on those options

without the requisite advice on their fun-damental rights and any technical stan-dards in play.

Fourth, mechanisms at the corporateoperational level must be based around di-alogue, be it discussion, negotiation, con-ciliation or mediation—not adjudication.A company will of course need to conductits own internal investigations when facedwith a complaint, but should be careful inpronouncing unilaterally and definitivelyon the appropriate response without fur-ther engagement with the complainant.

Too often, companies have viewedgood access points for complainants (forexample, independent hotlines) as the end,rather than the beginning, of a grievanceprocess. By being the sole arbiter of the re-sponse, they become both defendant andjudge in the eyes of an aggrieved party.

When the proposed course of actiondiffers from the one expected or desired, itcan quickly lose legitimacy. Credible adju-dication requires an independent and im-partial third party—whether judicial ornonjudicial—and cannot be the compa-ny’s role where it is a party to the disputein hand.

Fifth, transparency must play a key rolein grievance mechanisms of this type. Theytypically address complaints that raise is-sues of human rights or environmentalstandards, which are public goods.

This does not require transparencythroughout. A dialogue process must allowconfidentiality if it is to permit all partiesto explore their interests, concerns and op-tions for resolution. Yet while the dialogueor mediation will be private, the fact that

(continued on next page)

The principles discussed in this article arebased on work conducted by the authorfor the Corporate Social ResponsibilityInitiative at Harvard’s Kennedy School ofGovernment. This forms part of a projectof the CSR Initiative, launched in Janu-ary 2007, titled “Corporations and Hu-man Rights: Accountability Mechanismsfor Resolving Complaints and Disputes.”The principles and related guidancepoints are set out in full in the document“Rights-Compatible Grievance Mecha-nisms: A Guidance Tool for Companies

and their Stakeholders,” which is avail-able on the CSR Initiative’s website(www.ksg.harvard.edu/m-rcbg/CSRI/pub_main.html) as well as on the websiteof the Business and Human Rights Re-source Centre, at www.business-human-rights.org.

The principles were producedthrough a process of research and exten-sive consultations involving representa-tives of companies, international and lo-cal NGOs, governments, and investmentfunds, as well as mediators, lawyers, and

academics in a variety of countries.Companies consulted were drawn

from the extractives, construction, heavymanufacturing, apparel, footwear, toy,electronics, agribusiness, information andcommunications technology, pharmaceu-tical, and financial sectors.

The resulting document is designed asa living tool and may be further refined inthe course of 2008 in light of the project’scontinuing collaboration with a range ofinterested stakeholders.

–Caroline Rees

Harvard’s Corporate Social Responsibility Work

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a grievance has been submitted, and thekey elements of the outcome, must bepublic. Absent such openness, the legiti-macy of the mechanism likely will bebrought into question, as observers won-der whether the complainants understoodtheir rights, were appropriately advised orwere unduly pressured.

Sixth, and perhaps most controver-sially for many mediation experts, wherethe issues in dispute raise substantive hu-man rights questions, these standardsmust set the parameters for any outcome.Mediators typically advocate a need to fo-cus solely on interests and leave rightsoutside the door. Rights are seen as some-thing for adjudication.

THE INEVITABILITYOF DISPUTES

Yet human rights cannot be left at the doorof a mediation. They are inherent and in-alienable to the human being. At the sametime, it is a mistake to consider that mostdisputes that raise human rights issues re-quire binary responses—“right” or“wrong”; “violated” or “upheld.” In certaininstances, such as an alleged rape or mur-

der (for instance, by security guards near amining installation), such clear-cut re-sponses will indeed be essential. Allega-tions of corporate complicity in such anabuse properly belong in the courts.

In many instances, however, disputesraise rights issues of much less clarity. Let’sconsider some examples:

• There is a human right not to beforcibly evicted from one’s home out-side of limited circumstances andwithout due process and adequatecompensation. But what conditionswill lead a community to relocate vol-untarily from a new mining site? Whatwill they consider to be adequate com-pensation? There is no neat matrixthat provides the answers. It requiresdialogue and negotiation.

• There is a human right to freedom ofreligion and to manifest that religionin private or in public. If workers of aparticular faith complain that a facto-ry’s management is constraining theirneed to pray, how can managementmeet this concern without throwingproduction lines into chaos? Again, itrequires dialogue to establish work-able solutions.

• If local community members around aconstruction project claim discrimina-tion in the construction company’s hir-

ing practices, an adjudicative approachmay find that the company has hiredfairly, based on skills. Yet this may ig-nore more deep-rooted communityconcerns that immigrant workers aredisrupting the social fabric, challengingtheir culture and benefitting from de-velopment while locals gain nothing.Only through dialogue can these un-derlying concerns be identified and ad-dressed, and potentially explosive localtensions defused.

So any ADR process in this contextmust respect the human rights frameworkif its outcomes are to be sustainable and tobe judged as such. Yet the framework is justthat. Within it there is ample scope for di-alogue, negotiation and mediation to iden-tify the most mutually acceptable and ben-eficial ways of meeting a range of rightsthat are rarely susceptible to black-and-white prescriptions.

Rights and interests both have a place.The New Zealand Human Rights Com-mission is just one body with long experi-ence in using mediation techniques to ad-dress allegations against companies ofbreaching the right to nondiscrimination,marrying the preservation of minimumstandards with a process of mediated dia-logue. It has a 90% success rate.

These are some of the key principles

Hearing Grievances (continued from page 63)

RESOURCES

Here are news articles that provide more de-tails about the disputes listed in the article.

• Newmont at Yanacocha: Jane Perlezand Lowell Bergman, “Tangled Strandsin Fight Over Peru Gold Mine,” Inter-national Herald Tribune (Oct. 25,2005)(available at www.iht.com/arti-cles/2005/10/25/healthscience/web.1025gold2.complete.php).

• Cape plc: The judgment allowing ju-risdiction in the United Kingdom,which led Cape to settle, is availableat: www.parliament.the-stationery-of-fice.co.uk/pa/ld199900/ldjudgmt/jd000720/lubbe-1.htm. More materialand background is available at:www.business-humanrights.org/Cat-egories/Lawlawsuits/Lawsuitsregula-toryaction/LawsuitsSelectedcases/

CapeGencorlawsuitsreSoAfrica.• ChevronTexaco in Ecuador: Alan Zi-

bel, “Chevron Trial Opens,” OaklandTribune (Oct. 21, 2003)(available athttp://findarticles.com/p/articles/mi_qn4176/is_20031021/ai_n14563067;see also “Texaco Faces $1B Lawsuit,”BBC News (Oct. 22, 2003)(available athttp://news.bbc.co.uk/1/hi/world/americas/3212698.stm)

• Nike in Pakistan: A June 1996, LifeMagazine article started the cam-paign. Sydney H. Schanberg, “On thePlaygrounds of America, Every Kid’sGoal is to Score: In Pakistan, WhereChildren Stitch Soccer Balls for SixCents an Hour, the Goal Is to Sur-vive,” Life 38-48 (reproduced athttp://business.nmsu.edu/~dboje/nike/pakistan.html). See also John HCushman Jr., “Nike Pledges to EndChild Labor and Apply U.S. Rules

Abroad,” New York Times (May 13,1998)(available at www.nytimes.com)

• Coca-Cola in India: See Craig Simons,“Coca-Cola, Indian Village in Dis-pute,” Austin [Texas] American-States-man (Dec. 25, 2007)(available atwww.statesman.com/news/content/news/stories/world/12/25/1225india-coke.html).

• Yahoo and China: Philippe Naughton,“Yahoo to Pay Damages in ChineseDissident Case after ‘Moral Pygmy’Attack in Congress,” Times Online(London) (Nov. 14, 2007)(available athttp://technology.timesonline.co.uk/t o l / n e w s / t e c h _ a n d _ we b / a r t i -cle2868689.ece); see also: “Yahoo“Helped Jail China Writer,” (Sept.7, 2005) (available at http://news.bbc.co.uk/2/hi/asia-pacific/4221538.stm).

—Caroline Rees

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that the Harvard-based project suggestsmust underlie effective and rights-compli-ant grievance mechanisms. They are notappropriate to every kind of grievance ordispute between companies and theirstakeholders. They must be seen in contextwith external mechanisms and, most essen-tially, should be backstopped by effectivejudicial processes, which it is the state’s du-ty to provide.

But their function nevertheless is animportant one: important both for ensur-ing remedy to those affected, and for thesustainability of a company’s operations.These mechanisms should not be procedu-rally complex, but they will require integra-tion into the company’s management sys-tems if they are to work.

They need not be resource intensive,either. Smaller companies can draw on ex-

ternal providers or create shared platformswith others. But they will require top-lev-el management commitment. They donot promise easy solutions or resolutionof every dispute, but, done right, the re-wards for everyone involved are potential-ly significant. �

DOI 10.1002/alt.20217

(For bulk reprints of this article, please call (201) 748-8789.)

ators, and the American College of CivilTrial Mediators.

Federal and state courts, and privatenational and international providers suchas the CPR Institute, the American Arbi-tration Association, the Financial IndustryRegulatory Authority, and JAMS, as well asinnumerable local providers, created andnow offer mediator panels. The judiciallycreated panels tend to require some form oftraining before acceptance—sometimes at-tending a four-hour course, and others,such as Florida, going to a 30-hour train-ing to be officially designated as a “Certi-fied Mediator.”

The passage of the Federal ArbitrationAct in 1925, and the National Labor Re-lations Act a decade later, created a profes-sion. Labor arbitrators and mediatorsemerged as a breed apart, vetted by theNational Academy of Arbitrators, forquality and professionalism that sets thegold-standard for integrity and compe-tence in labor-management relations. La-bor arbitrators and mediators are typicallyfull-time and specifically trained and ap-prenticed as neutrals in the field of collec-tive bargaining.

Mediators of commercial disputes—emerging 50 years later—operate under nouniversal set of rules, require no training ortesting and are not licensed. The UniformMediation Act was approved by the Na-tional Conference of Commissioners onUniform State Laws in 2001. A dozenstates and the District of Columbia haveadopted the UMA.

But the uniform law focuses on media-tion protocols such as privilege, disclosureof conflicts, and party autonomy. It definesa mediator simply as “an individual whoconducts a mediation.”

In other words, a business card, a web-

site and a market following make you amediator. The only confirming ritual leftto do, at least under the UMA, is to “con-duct a mediation.”

WE’RE THE OPPOSITION, TOO

The most vocal arguments made by medi-ators, at least in the United States, areagainst regulation. Recalling our 1970s ori-gins as a grassroots response to litigation’soverwhelming financial, emotional andtime costs, mediation appeared first in Cal-ifornia, a jurisdiction fond of embracingthe new and magical. Mediators talk ofhealing, of communication at many levels,of the “ah hah” moments when an irresolv-able dispute is suddenly resolved.

Mediators come from all walks of lifeand disciplines—from law, psychology,psychiatry, social work, the clergy, and hu-man resources. The ABA’s DR Section isunique in admitting non-lawyer members.Now, a quarter-century into our enterprise,the profession has self-sorted into groupsthat do community dispute mediation, di-vorce and custody mediation, employ-ment, and commercial mediation. We havetalked for decades about self-policing,about ethical standards, about best prac-tices, about the qualities of a good media-tor, but we have never talked about compe-tency certification or, even more daring, acompetency assessment system. In addi-tion to proposing mediator competencystandards, the IMI proposes a mediatorcompetency assessment system which in-vites feedback from users.

The IMI initiative fills a gap created bythe following conditions:

• Mediation practice is fragmentedamong its many styles and disciplinesnationally and locally.

• No single organization focused on me-diation has a global reach.

• Most ADR organizations are providersin a highly competitive market.

• Most ADR organizations are arbitra-tion-focused.

• Most ADR bodies have insufficientfunding to launch an internationalinitiative.

• Mediation providers are inadequatelyorganized internationally.

• In the U.S., previous attempts to certi-fy mediators have stalled.

• A user-driven initiative has not beenattempted.

Certainly, an ambition to establishglobal mediator competency standards isnot for the faint-hearted, and IMI boastsan array of provider, trainer, corporate andmediator representatives as its consultants.A mediator who meets the detailed IMI re-quirements may hold himself or herself outas an IMI Certified Mediator, entitled touse the IMI title and logo.

The basic agenda IMI proposes lookslike this: Mediator competency will bebased on four components or “competencystreams.” The competency streams includerequisite training by an IMI-approvedprovider. Mediators will earn accreditationon the successful completion of an ap-proved course. There are grandfatheringprovisions for mediators who already havecompleted training equivalencies.

“Continuing Professional Develop-ment” will be required. This is similar toCLE for lawyers, and an assurance that acommitted mediator will acquire state-of-the-art knowledge, leading to best practicesand cutting-edge skills.

A mediation ethics code will belaunched to which IMI mediators will ad-here. A disciplinary committee will beformed to consider reported violations.

(continued on next page)

Mediators’ Alert(continued from page 57)

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Principles for hearing grievances, and an effective response

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