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 concepts affirm the right of individuals to live and work free from discrimination and harassment. In dealing with areas of systemic discrimination, it may be difficult to promote structural changes when dealing with it on the personal level. While in some instances we are inclined to deal with human right issues on an individual level, systemic issues are anything but ‘individual issues’, and the crux of these issues, more often than not, involve discriminatory treatment of an entire group of persons.
ADR as compared to traditional courts is infinitely more flexible; courts tend to rigid in their approach and on occasion this could lead to entrenching the problem. The ADR approach may lend itself to dialogue among the parties, and dialogue is a good starting point for the resolution of individual issues, but to achieve structural changes it is suggested that human rights education on a large scale is the proactive and preferred course of action. In dealing with public education to bring about structural changes in a society, a particular type of court may be best suited to that. A restorative court may bridge those two elements: restorative on the one hand where it seeks to have the parties work collaboratively to work for the betterment of all within the group; yet with the authority to mandate a public education and structural changes from within.
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?
ADR techniques can be used to address racial or gender based discrimination. Traditionally the court system is a rigid system; ADR is more flexible. Racial and gender-based discrimination affects a multitude of persons. Systemic discrimination is not one person being discriminated against based on a protected characteristic; it involves an entire group of people being discriminated against based on systemic and institutional built-in biases. In dealing with that kind of discrimination ADR techniques at the court level can be useful as well as powerful tool. This allows for the inclusion of all possible stakeholders in the mediation setting but at a court level.
One example of each kind of case is as follows:
The Nova Scotia Human Rights Commission (the Commission) allows for facilitation (known as resolution conferences) of discrimination on an individual level; if this is unsuccessful, then this type of facilitation is also available at an advanced level where a Board of Inquiry or BOI (which is an administrative tribunal) can proceed to the hearing of a complaint.
Very recently there was a complaint alleging individual and systemic discrimination on the basis of race and colour individually against each of a number of black fire fighters, and against them as a group. An investigation led to a Board of Inquiry which found that there was sufficient information on which to find for a case of discrimination based on race and colour. Through a restorative process, the parties came face to face on several occasions in an attempt to resolve the issues. The process yielded positive results and a comprehensive resolution resulted. Components included among other things: a public apology by the Chief of the Fire Services; open and transparent recruitment practices; a letter of commendation for each complainant; the establishment of, and the payment of a grant towards, an endowment fund on behalf of the complainants; that the respondents establish a conflict dispute resolution plan and processes and that the Commission provide support for the model.
One of the components of a BOI is that it is a public hearing and the Chair of the BOI has coercive powers, if necessary. Because systemic issues can be highly emotive a restorative BOI mixes the right solutions of collaboration and a restorative approach, with the knowledge that if the parties are themselves barren in their discussions then the Chair can always, in a restorative manner, assist the parties to explore the issues and achieve a resolution.