Human rights disputes arise everywhere, and their reporting is on the rise. In 2018, the Human Rights Tribunal of Ontario (HRTO) experienced an unprecedented 25 per cent increase in its caseload.[1] This increase coupled with a shortage of adjudicators[2] has led to significant delays and a growing backlog of cases.[3]
The HRTO recently announced that it will be conducting a “mediation blitz” to deal with its backlog.[4] This raises questions relating to the desirability of mediation in human rights cases, the appropriate process and the crucial role of the mediator (including non-HRTO complaints).
The criticisms of mediation in the context of human rights disputes are well-known. The potential vulnerability of the complainant, the power imbalance between the parties, the public interest in adjudicating precedentsetting cases and the possibility of surrendering one’s human rights for less than their true value, have been frequently elaborated.
In spite of that, most human rights practitioners recognize that mediation can be a valuable tool. After all, the benefits of mediation – including lower costs, speedier resolutions and the ability to maintain confidentiality – are equally well-known.
Human rights disputes are in fact ideally suited for mediation. Mediation provides respondents with their “day in court,” and the empowerment that comes along with telling their story. It also demonstrates to respondents the impact of their conduct. Finally, it allows parties to explore interest-based solutions not typically available in a legal forum, which may preserve ongoing relationships.
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