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1. Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
Human rights disputes arguably should be dealt in public and private. Human rights disputes, like so many other types of disputes at the basic level involve a disrespect leading to the notion that one party is less or non-existent. A positive sustainable resolution arguably cannot be achieved until a sincere acknowledgement of some form is made. ‘Sincere acknowledgement’ is a simple concept but hard to achieve. It is hard because it involves mending a relationship in the midst of a conflict. It involves shaking hands in the middle of a brawl. Courts traditionally accommodate an adversarial approach to resolving a dispute. Sincerely acknowledgment often takes a second priority to legal issues. Courts often focus on the law, rules, and justice. It is often less flexible than any ADR forum. For this reason an alternative to the courts to resolving disputes may better serve human rights. Alternative dispute resolution facilitates a flexibility that courts traditionally do not.
However, courts should not be excluded from the process. Certain matters require the public interest for justice and real change to occur. Courts are traditional adversarial and it remains to be seen if they adopt ADR restorative approaches. That said, certain matters require the safety of secrecy and diplomacy for change to occur which courts cannot provide.
2a. Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why?
Yes. Discrimination allegations whether racial, gender, or on other prohibited grounds involve relations between human beings. Mediation and conciliation provide a safe space to understand and explore the issues behind historical failed relations involving either race or gender. Mediation or conciliation specifically addresses the underlying reason why relations failed. This is particularly important in systemic race and gender-based discrimination. Any positive sustainable resolution needs to have full participation from all stakeholders. ADR may better serve this goal over the Courts. It provides a relation focus that courts traditionally lack.
2b. Could you provide some examples from your own work?
i) The Nova Scotia Human Rights Commission facilitates dialogues between parties of dispute involving race, gender, and other protected characteristics. The Commission adopted restorative approaches in facilitating these dialogues at every level of a dispute.
For context, the Commission does not coerce or persuade parties into finding a resolution. However it provides parties with the necessary elements and space to resolve their own disputes. The necessary elements include but are not exhaustive:
1. Helping parties bring the stakeholders to the table.
2. Providing ground rules for effective dialogue.
3. Acknowledgement of how individuals in the discrimination allegations are affected.
4. Provide leadership in human rights education where appropriate.
5. Address power imbalance.
6. Provide confidentiality during the moment of the dialogue.
7. Protection form retaliation.
Race and gender-based discrimination often involve high emotions, fierce resentment, and hurt feelings. The above elements are effective in a discrimination cases because it provides a degree of safety to explore issues and discuss resolution.
ii) The Commission receives human rights complaints involving employment and race or employment and gender. This is particularly significant because often a complainant wishes to return to the employment or is still employed. If relations between parties are not mended discrimination continues despite achieving a resolution. The Commission through its restorative approach is able to assist parties in building or rebuilding relations so that parties could continue with their employment without fear or the awkward return to work.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
I think the choice should be up to the complainants, ultimately. ADR processes, should be voluntary processes that are not coerced. Sensitive issues that can be dealt with through conflict resolution processes, such as restorative justice, for example, offer more in the way of collaborative solutions, addressing harm, repairing relationships and preventing similar harm in the future. Public shaming or punishment might solve the problem in the moment, but it just displaces it and often does not prevent it in the long term. I don’t see it as being a helpful way to promote structural changes. Those need to come through the adherance of human rights such as economic, educational, environmental and civil and political rights. Punishing people won't change the structure of society in a positive way. It will hide the problem behind closed doors. Deterrence does not work to prevent future harm. However, there are the very few incidents that may require the use of the courts for public safety, but I would suggest that courts should be used only when necessary because they do little to repair the damage and prevent future harm
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
I have used restorative justice to address race-based discrimination with much success. Overt racism and unintentional racism (although intention doesn’t matter) can be addressed through these techniques successfully. Often those who are harmed need the recognition and acknowledgement of harm coupled with an apology. They need to explain to the respondent why their actions were racist or hurtful, and they need to be heard and understood. Often I find the respondent feels terrible and didn’t appreciate the gravity of their actions or words. Sometimes there may even be misunderstanding at the root of the issue. These conversations can be quite healing. However, part of these processes is preparing the parties to come together, so the facilitator focuses on building insights and helping the parties see the other’s point of view.
Q:1- Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
That’s kind of hard to say because I don’t have direct experience with this in my current job, so I can’t speak personally in the way of public or private ADR techniques. But I think it could be a combination of public and private.
I agree with Huan Pham when they stated that the court system can be cumbersome & less flexible in finding a resolution. But on the other hand, if handled through the court, it can set the precedent and put the wheels in motion for larger, structural change.
I hope I am not way off topic but, in my humble, un-experienced, broadcast journalism-minded opinion, if dealt with in public via courts, marginalized people have the opportunity to voice their opinions, advocate for their rites, & even gain exposure from the “outside world” who might not even know their plight exists.
On a societal level, this momentum can cause a call for legal rights & change for marginalized groups on a bigger scale. It can bring out people who might have felt isolated & never have felt they had a voice.
On the other hand, the law can be very cumbersome and take a long time to adjust, if ever. So it could also be beneficial to incorporate some of the private ADR techniques to better address the individuals desires.
Q:2- Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
Yes, I definitely think it can, but it would be a delicate process because of everyone’s individual biases. Whether it be racial or gender, there will be biases on all sides. The mediator of the group could affect mediation or conciliation simply by his own racial identity. For example, if the member of the minority group has a majority group mediator, immediately they are going to feel that the mediator will not be able to understand their concerns or the historical context of where they are coming from & will not feel comfortable.
Again, I do not have any direct work experience, but I think a combination of conciliation & mediation could be effective and create a safe environment to intentionally work through some deep underlying issues.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
Any dispute can resolved and dealt in public and private, it is good to apply ADR techniques (In private) before it reaches to court (In public) but it should be based on the desire of the complainants. In our country, the conflicting parties should follow and abide the Islamic Shari 'a laws whatever techniques using to resolve their conflict. Both parties should accept the result of the judgment either by court or mutual consent among them.
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no?
Yes, it can be resolved through ADR techniques such conciliation or mediation and any sustainable resolution should be involved by all stakeholders if possible. But it may fail, if the criminals continue their actions and in such behavior should be dealt with court in order to eradicate evil from the society as well as criminalize the offenders.
Could you provide some examples from your own work?
My organization (SONYO in collaboration with Inter-peace) has carried out research on youth violence baseline in Somaliland. The research focuses on the following points:-
·Causes and triggers of Youth violence
·Actors: Perpetrators and victims
·Setting and trends of the youth violence
·Gender based sexual violence
·Framework, existing institution (Informal or formal), opportunities and interventions (Legal frameworks, judiciary system, customary law, etc. in addressing Youth violence)
·The role of youth in peace-building, democratic participation, civic engagement and their constructive role in the society.
The findings of the research found out that gender based violence rate are very high and needs immediate actions from overall society including state and none state actors.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants?
Dealing with human right can be done in public or private depending of the case and the situation. As we were saying in the previous session, this debate is related to peace and justice. For sure, resolving problem via courts structural is the better and durable way to rend durable justice by the coercive way and method but in the other hand we can understand that courts go with lot of consequences for both parties mostly if dealing in public.
In the former ADR process becoming IAP (Alternative Dispute Resolution) Implemented by the government of Canada, it was conclude by both the representative of the Government and Indigenous representatives that human right violations, the damages and humiliation cause to Autochthones peoples in the Residential school should be resolve in an extra Judicial way with lot of privacy. And in our case, the hearing is always held in a private Room where the claimant only invite some support and explain her/his case to the adjudicator with the presence of the representative of the department of Justice and they're much better able to deal with the emotional and value laden content and better able to control over the process and That kind of situation won't be possible if it was in public and even if was the case lot of people won't accept to do it.
In the article, Dispute resolution in the changing shadow of the law,Tracey and Sofie are explaining the benefit of ADR technique with the range of flexible methods including face-to-face conferencing, shuttle conferencing, tele-conferencing and shuttle telephone negotiations that you may not have the courts which is very regulated. Also, in comparison with formal court-based determination processes, conciliation is seen as more efficient and cost effective, more accessible too.
We all know that they have some disadvantages but for many caps people prefer the Extra-Juridical way. As the article says,” it has been argued that the private and confidential nature of conciliation settlements limits broader social change and complainants are likely to be less articulate, less assertive and have fewer emotional and financial resources than respondents, who are often government departments or private companies, they will be disadvantaged in a private dispute resolution process facilitated by a 'neutral third party conciliator'”
In some case, it more that better to sort out the human right violation but courts, to resolve the problem and teach a good lesson to other.
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
This question is mostly like the first one. Racial or gender-based discrimination are all human right issue, so for some case and depending the environment, it's sure that conciliation or mediation are better and constitute a win win method, because they allow the parties to control o0ver the situation and they can after get together without any coercion and they can also control the procedure. Contrariwise, with the court jurisdiction way, the parties have any control and they may not have time or opportunity to talk if they are represented and the worse side of that, if after decision has been rend thing can get worst event if we consider that it's the Right and the law. They are never win win opportunity in jurisdictional case. So using ADR methods to deal with human right is mostly the better way even we can use other method to reestablish justice.
I think that there are not recipes that we could use to resolve disputes or change socio-political structures, instead of trying to define a method, what we should do is to evaluate the conflict that we are facing, and set up the road to be follow.
Even though, I also believe that no matter the problem, in order to direct the conflict into a path that takes to the solution, the settlement of the negotiation and the dialog´s rules, should take place behind closed doors. This action could help to strength trust and dialog between parties, and could help also to clarify doubts that eventually could make the conflict worst or create new ones.
About the racial or gender based discrimination, I believe that ADR could help too, but just if the parties are able to talk and to give away those aspects that are not that important and essential for them.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
I think Human Rights should be dealt in public via courts, as it improves the situation for rehabilitation of war-torn societies. However, Human Rights implementation should be managed effectively and sometimes, for instance, using ADR techniques, as they are seen as a mean to increase access to justice for population that cannot or will not use court system.
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
Yes, I think it can be addressed effectively using ADR techniques, it would depend in finding the ADR program in which the objective of reducing racial or gender discrimination can be achieved. This can be addressing larger social issues, especially access to justice for the discriminated people and the empowerment of women.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
Human rights should be dealt with in both public and private.
Sometimes, the sheer volume of violations, or the interconnectedness of violations, make private processes impractical. In these cases there is sometimes a public call for justice and a desire to see the perpetrators prosecuted. There may be fears that if dealt with privately, a culture of impunity will be inadvertently promoted. ADR techniques don't have to be completely private, however, so it's important to not dismiss them as not having any potential for broader societal impact and recognition.
To some extent, the environment of a local justice culture makes a difference in terms of whether cases are dealt with publicly or privately- which I think isn't necessarily a bad thing but is important to remember when we advocate for particular justice (formal, non-formal, public, private) processes. In the US, you may find times when mediating HR violations is perceived as not treating the problem as seriously as going to court. Where as in other countries, it would not be victims or perpetrators first choice to go to court but this decision wouldn't be a direct reflection of the perceived severity of the incident.
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work? S
Specific instances of racial and gender-based discrimination can be addressed effectively using ADR, and potentially, even some cases of small group or structural discrimination. There are structural factors to racial and gender-based discrimination that a case by case ADR approach would have difficulties addressing head on and efficiently, but a judicial sentence doesn't necessary address underlying causes either.
Just a personal story that this reminds me of- I had a similar debate with two friends who faced gender-discrimination by a small business. An employee of the business kicked them out while stating derogatory slurs that qualified as hate speech. A police report was filed and they had the option of going to court. One friend was very supportive of going to court- she wanted a judge to say she was in the right and she believed judicial action was the only way the business person would not do the same thing again. She felt very humiliated by the situation and thought a court proceeding would highlight the legitimacy of her feelings. The other friend wanted to pursue mediation because she felt she would not be able to really talk about her personal story and how the incident affected her in court. She also worried about a lengthy process and possible character defamation. She didn't want the case to take over her whole life. She also wanted to hear about the businessman's experience and she thought that a court decision would be perceived as being "imposed” upon them but not actually change their underlying views on the issue at hand.
Both views completely valid, and ultimately driven by differences in what each individual viewed as an optimal outcome. Assessment of optimal outcomes is not only culturally shaped, but very individualized as well.
1. Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
I think human rights should be dealt with both public and private. I believe that it is possible to promote structural changes in both arenas. Human rights have, as pointed out in the literature, an "open space”. This "open space” has to be interpreted by many stakeholders, not only law practitioners. When the Conventions of civil, political, economic, social and cultural rights where ratified the state parties agreed that the interpretation of the human rights was not only a legal one, but also a political one. The political part of the human rights is mainly a member states personal affair. In the sense that different actors has to be involved in the process of solving human rights abuses and issues. I think it's almost easier to identify structural derogations in the system, outside the court room than inside a court room. The reason for this is that in court the judge's focus mainly on the legal system when they evaluate if a state has fulfilled their human rights obligation. The law system is an effective mechanism to implement human rights, but it cannot cover all the different areas in a society, where human rights have to be implemented. For example education in school is a very important area where young people must learn about human rights both as legal rights and also the political dimension in human rights which creates tension in the society especially amongst political leaders and the authority. The working environment is also a very important area where human rights play a significant role. That's why it's so important to organize labor and trade unions and also spread information about human rights in a non-dangerous way.
2. Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
I think gender - based discrimination has mainly to do with ignorance, and a lot can be done through educating and lighting up the population. But it also have to be dealt with by the authorities and political leaders in the country. Sadly, discrimination often starts on the "top” of the hierarchy by corrupt and dangers leaders which systematically discriminate different groups in the society. Therefore I think it has to addressed and dealt with via human rights activists and through ADR techniques. When a country discriminates parts of the population this is a concern for the international society. If the legal framework in a country doesn't prohibit discrimination I think it should be dealt with via public courts. Because it reveals that the government is systematically discriminating some parts of the population, which is not acceptable. In the same time it is important to use ADR techniques at school and at work to solve conflicts and prevent discrimination. It is also extremely important to educate young people so that they become enlightened and understand the concept, and the destructiveness discrimination involves.
Again I think this depends on the kind of conflict or human rights violation that has to be dealt with and the cultural context of the violation. Turner points out that discrimination in western societies is often hidden from the public, or at least its existence is not generally recognised. This context makes it difficult to provide the justifiable evidence that is required when taking up a case in the courtroom. To proceed with the case and then suffer a public defeat would not contribute to the prevention of future violations. In a country as Canada, which according to Turner is assumed to be racism-free, this would only confirm the coloured minority's feeling of not being heard and the white majority's feeling of not doing anything wrong. When addressing the violation through mediation a positive, as well as a negative, effect on social structures is generally ruled out. On a micro level though, there is a better chance of reaching mutual understanding and a satisfactory outcome for the involved parties, as well as, as noted by Raymond, a better chance of a satisfactory continuation of the personal relationship. I think that this prospect of at least some understanding weighs heavier than the ethnocentric qualities of ADR-techniques.
I do not think that taking a conciliatory approach to conflict resolution has to exclude public attention and structural change. If permitted by the context and involved partners the stories of successful conciliations can be used to inform the public of processes of racial discrimination within their society and ways to overcome them. A legal conviction of an individual might not lead to the realisation that racism is still present in society as a whole, if that society is used to denying that fact. Using the stories of reconciliation and Turner's educational approach are likely to have more effect than taking individual cases to court.
Cases with more evidence of (racial) discrimination can be indications of a broader conflict with higher intensity. If this is the case the relationship between the conflict parties is of lesser importance than the effect on the conflict as a whole. Here in Chiapas conflicts involving discrimination between or within communities are often addressed by using ADR-techniques. Advocates of discriminated communities, as well as advocates of women's rights though often stress the importance of public recognition of the violations committed against them. Solving the local conflicts just through mediation does not, in any way, seem to contribute to resolving the conflict as a whole.
Human rights organisations in Mexico are currently involved in the organisation of the Permanent Tribunal of the People. During a pre-hearing in July some of the victims got the chance to testify in front of the court's judges, a public and international press. Though the Tribunal has no legal status, the opportunity for victims to go public with their stories and to hear the court's convictions after the hearing provided them with the long sought recognition for their suffering. I do not believe that conciliation and mediation are able to provide this recognition, which is of vital importance to the prevention of further conflicts.
Should human rights be dealt in public via courts in order to promote structural changes, or should they be dealt with in private (behind closed doors) via ADR techniques in order to better answer the desires of the complainants? Explain your opinions.
Both to human rights practitioners and to ADR practitioners, their ultimate goal is sustainable peace and justice, and emerging trend of both arenas' collaborations obviously shows the needs of each sector to be complementary. However, thinking of the core meaning of human rights, which I believe the norm exists for all human beings to keep their basic rights while living in the contemporary world, all methods should be considered for complainants' or victims' benefits first. And I believe there would be the beauty and the reasons of these two sectors collaborations. The court system is obviously an effective way to protect the human rights and to address human rights violations, but due to the complexities of each society and each victim's backgrounds, in many cases, it does not always cover each victim's own benefits. It is always time and cost consuming, hard to access without help of law professionals. In sensitive cases, such as gender based discriminations or sexual abusing issues, ADR processes should be equipped and offered, if there's a need from victim or complainant. What national institutions and concerned organizations for those victims have to do is an assessment of the cases whether they are systemic and should be addressed in public or not. Facilitating these conflicts resolution management is primary, but when the issue is considered to be being repeated, systemic and crucial for promoting structural changes, considering the court system and seeking justice process should be followed. It, of course, still remains in national institutions and concerned organizations' capacity to mollify victims' tension and encourage them to face the future adversities when the case go public. In line of this perspective, I don't think ADR process should be placed behind the curtain all the time. Via diverse ways through those facilitating institutions, ADR can be implementing its own role and cover the shortcomings of the law system. It always takes long time to make structural changes and entrench new idea and thoughts in a society. Given the fact that preventing future harm depends on the changes of public awareness, embedding human rights aspects in all kinds of education should be considered too.
Do you think that racial or gender-based discrimination could be addressed effectively using ADR techniques such as conciliation or mediation? Why yes/no? Could you provide some examples from your own work?
I basically don't like human rights being dealt privately. I believe the existence of some kind of universal human rights norms that should be applied to all human beings regardless of any circumstances. However, racial or gender-based discrimination could be sensitive to those harmed, and this is where the ADR should be used for the sake of them. To maximize the benefits of complainants in the ADR process, facilitator focuses on selecting mediator or conciliator whom the complainants are able to count on through the whole process. This could undermine the core value of the ADR process, impartiality, but this is what the violators should put up with in regard that the ADR is still more beneficial to them than bring the case to the law system.