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Can I settle by negotiation?

There are situations where a settlement may be preferable to a court battle. There may be many reasons for this: amongst others, costs, and the fact that courts are limited to legal remedies when there may be more flexible and innovative solutions.

1

Extra-judicial (outside the court) ways to settle a dispute

Alternative dispute resolution (ADR) is a non-conflictual way to settle disputes, without bringing the case to a court or a tribunal. There are many different extra-judicial approaches to conflict resolution, but the main ones are mediation or negotiation.

a) Mediation

Mediation means there is an intervention of a third person (a mediator) who is neutral and who will try to bring both parties to a common decision. The mediator will do this by organising meetings and creating a favourable space for dialogue. Depending on the country, this process can also be called conciliation. The mediation can be done by a non-professional in some cases, or by an institutional instance (such as a judge, the National Contact Point of the OECD for multinationals, or an ombudsman).

b) Negotiation

Negotiation is a way for the parties to discuss in private the problems they are facing and to find a solution that will induce some concessions for each. Negotiation is not necessarily facilitated by a third-party but the parties could be represented by lawyers or other delegates.

2

Advantages of alternative dispute resolution

The goal of these processes is to find a solution that suits both parties. Each party makes some concessions and tries to reach a decision that will satisfy the interests of both parties.

The main advantages of these conflict resolution processes are that they take less time and less money than a judicial process, and can be kept confidential.

3

Risks of alternative dispute resolution (and how to avoid them)

Here are some of the downsides of negotiated settlements:

a) The stronger party will dominate the process. Opponents such as a company with more resources will have more resources and its arguments will win out. Another risk could be that the company takes advantage of the negotiation or mediation process to publicise its actions (greenwashing).

When deciding to engage in ADR, it is important to be well-advised and prepared, in order to obtain a solution where the other party in the negotiation makes meaningful compromises and significant commitments.

b) The solution agreed may not be implemented by the other party. You could use the media to denounce any non-compliance by the other party.

c) The opposing party may later deny commitments made during an oral procedure.  To avoid this outcome, make sure that all decisions taken during the mediation or negotiation are in writing, and are signed by both parties.

d) The negotiators agree a solution that does not suit everyone. Not all the people, communities or workers affected may agree on the outcome. The mediation should always be driven by the people affected and they should all participate in every stage of the process, including the planning phase.

4

Can you withdraw from the procedure and take legal action instead?

Yes. You can go on a judicial action if mediation fails.

Sometimes more powerful actors, such as companies, make their adversaries sign documents in which they agree to go through the process of negotiation and to give up their right to take legal action. It is essential not to sign this type of commitment and to make the other party understand that if the mediation fails, you will still consider taking legal action. This can be a form of leverage over a more powerful adversary, persuading them to enter into meaningful mediation or negotiation.

5

Remedies achievable through mediation or negotiation

The first step is to ensure that the other party stops the actions that led you to seek a remedy.

The next step would be to draft an action plan with the opposing party, in collaboration with the various parties affected by the case (communities or workers, for example), that seek to resolve the problems, step-by-step.

For example, if a company is polluting a water source, you can agree on an action plan in which the company would commit to stopping the actions that led to the pollution. You would then seek to remedy the damages this pollution caused. Finally, you would agree on measures to monitor the situation to prevent any future pollution. This could include, for instance, an action plan for the company to preserve the environment.

6

Ensuring that the decisions taken are respected

Depending on the results obtained, you should involve different actors, such as NGOs and civil society organizations to monitor the proper implementation of the terms obtained during the negotiation.

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