Our key takeaway: The UNGPs set out that effective operational-level grievance mechanisms (OGMs) should be based on engagement, dialogue and consultation with rights holders (Principle 31). This engagement must be a continuous theme throughout the life of an OGM, from design, to reform, to operation. Despite the emergence of OGMs for all types of projects and in all types of legal regimes, few have cracked the code to a truly effective OGM that satisfies both communities and companies, while respecting the right to remedy. One option to achieve more effective grievance mechanisms and meaningful remedy is to implement community-led or co-designed OGMs, yet there are still many challenges to this approach in practice. Resolving some of the difficulties faced by both rights holders and companies could help OGMs make major strides forward.
The American Bar Association’s (ABA) International Human Rights Committee released Exploring Challenges to Company Adoption of Community-Designed Grievance Mechanisms: Summary of American Bar Association Workshop held on May 12, 2022 (July 2022). The report summarises key themes from the workshop, which brought together a group of around 30 lawyers, mediators and other practitioners, including participants from academic institutions, civil society organizations and the private sector, "to determine the issues that they see as important to tackle, with the aim of aiding uptake of rights holder-led or collaborative OGM [operational-level grievance mechanism] design in the future.” The workshop report has a wealth of observations and experiences from both the company and community practitioner perspective; we highlight only a few select insights:
- Accountability and trust are shared themes for companies and communities: One key takeaway for practitioners representing both the company and the community perspective was the need to clearly determine who has oversight of the OGM, with both groups agreeing that an independent, third-party mediator is the best option for this role. Communities are especially concerned with accountability for outcomes: “From the perspective of practitioners representing the community, there was an emphasis on ensuring there was a way to enforce agreements regarding remediation. One discussion group raised this in the context of the need to avoid a situation where companies engage in discussions with rights holders, or even publicly commit to providing remedy, but then fail to follow through.” Companies, meanwhile, want to understand who has final decision-making power over the OGM, “including decisions about who would be eligible to use it, and what would happen if a rights holder was not satisfied with the OGM’s resolution of a complaint.” A related theme was the need to develop rights holder trust in the OGM, including in the design process and throughout its implementation. Both companies and communities recognize that, “[w]ithout that trust in both the process and outcome, people would not use the OGM and it would not result in providing access to remedy. One discussion group noted the need to balance transparency, which can contribute to trust in the OGM, with individual complainants’ need for confidentiality.”
- Both companies and communities see challenges in overcoming power imbalances: Participants from both perspectives flagged the foundational issue of power imbalances between companies and community members. Power imbalances can quickly erode trust in the OGM and undermine a mutual sense that both sides are operating in good faith. Participants proposed several actions that could help overcome this barrier. At a high level, “[s]ome mentioned the need for cooperation and open communication to address these imbalances, and the need for a trusted independent facilitator to aid those discussions.” More specifically, practitioners from the community side pointed to the importance of having organizers to convene rights holders and build community cohesion—“a source of power.” In addition, they highlighted the need for external researchers to gather information on the company, project financing and actual or anticipated harms to rectify information asymmetries. Other solutions include having translators and interpretation services, financial resources for travel and accessibility for community members, and third parties who can educate rights holders on the mechanism.
- Understanding remedy and managing expectations are crucial from a community perspective: There were several topics raised only from the company side or the community side. On the part of the community, practitioners “emphasized the need to fully understand how the impacted rights holders defined remedy. One discussion group noted, for example, that if rights holders wanted to put a stop to the project, then proposing an OGM could undermine that goal by implying consent for the project to go forward. Others noted the need to identify whether any rights holders would benefit from the project and whether, for others, the potential harms could be mitigated.” They also pointed to the importance of managing community expectations for the OGM, including timeframes, the possible need for outside advocacy, the need for compromise, and examples of effectiveness of OGMs in similar circumstances.