Mediation has arrived as a long-awaited response to the serious backlogs of complaints facing human rights Commissions across the country.
Each of the provincial Commissions has now adopted mediation, with varying degrees of formality. Tony Griffin, legal counsel with the Ontario Human Rights Commission, observes that while “it is ironic to see mediation established within human rights processes which were themselves supposed to be ADR processes, the success rates of mediation are significant.”
At the Ontario Commission, all complaints are now referred to mediation following intake, with the parties’ consent. According to Mr. Griffin, of those cases which go through this “mediation loop,” 70% are resolved to the satisfaction of the parties within three months of a complaint having been filed.
If a complaint proceeds to investigation, the investigating officer also uses ADR methods in fulfilment of the Commission’s statutory duty to try to effect a settlement before referring the matter to a Board of Inquiry. Once a Board is appointed, the mediation option is once again canvassed with the parties by the Chair of the Board. According to Mr. Griffin, mediation undertaken at the pre-hearing stage has a 50% success rate.
Complications may arise at the pre-hearing mediation if the Commission’s view with respect to the reasonableness of a settlement offer diverges from the complainant’s. In these situations, the Commission’s practice has been to allow the complaint to proceed to a hearing without the Commission’s participation. This practice is presently under review by the Ontario Court of Appeal in McKenzie Forest Products Inc. v. Tilberg, with the appeal scheduled to be heard on March 8, 2000.
The Canadian Human Rights Commission has also embraced mediation with great success. Janet Spencer, a mediator with the federal Commission’s Compliance Directorate, is enthusiastic about the Mediation Pilot Project implemented two years ago. Ms. Spencer believes mediation is “never a waste of time, because even if the parties do not reach a settlement, there is an astonishing learning process that takes place and the parties are always in a better position after participating in mediation.” Ms. Spencer says that mediation offers the parties “a chance to walk in each other’s shoes” and maintains “that’s what makes it work.”
The Canadian Human Rights Commission applies a set of criteria to determine which complaints are suitable for mediation. For example, complaints which raise policy issues, and sexual harassment cases, often do not lend themselves to mediation and proceed directly to investigation. Since mediation is not mandatory, only two-thirds of those cases which the Commission believes are suitable for ADR actually proceed to mediation with the parties’ consent. Of those cases in which mediation takes place, 75% are resolved with settlement agreements.
“Conciliation” represents a separate ADR process used by the federal Commission. The dynamics at conciliation are often different than at the initial mediation, because conciliation takes place after findings of fact favourable to the complainant have been made by the investigating officer.
It is important for the parties to realize that the members of the Commission are informed of the results of the conciliation process and the substance of any settlement offers exchanged. In accordance with the Federal Court’s decision in Garnhum v. Canada (Canadian Human Rights Commission) (re Canada (Canadian Armed Forces)), such factors may be taken into account when determining whether the appointment of a Tribunal is warranted. It is therefore critical that the parties understand that settlement offers have real significance to the Commission’s disposition of a complaint.
In B.C., the Human Rights Commission has formed the Dispute Resolution System Design Project to foster innovative dispute resolution techniques and increase choices of how human rights disputes can be resolved. According to Kelly-Ann Speck, Commissioner of Investigation and Mediation at the B.C. Commission, “one of the areas we’ll be looking at is the Commission’s accessibility to various cultural communities which say our system is too adversarial, too reliant on written communication and fosters very little personal contact between parties.”
The use of mediation in the resolution of human rights disputes is undoubtedly a positive development in a system which has been criticized for failing to deliver effective and efficient remedies to victims of discrimination. However, improvements are still required to increase the effectiveness of mediation. For example, requiring the parties to participate in mandatory mediation, rather than having mediation available on a consensual basis, would level the playing field and ensure that mediation is perceived by the parties as a credible means of resolving human rights disputes. Moreover, unless complaints are processed more expeditiously, respondents will continue to count on lengthy procedural delays as a disincentive to their participation in early mediation.
© 2002, Denise Workun. Denise Workun practices Human Rights and Employment Law with NelliganO’Brien Payne LLP in Ottawa. Ms. Workun gratefully acknowledges the assistance of Melissa McDonald in gathering information for this article.