Helping OECD Members use Mediation to Resolve Complaints About Multinational Enterprises

BACKGROUND AND CHALLENGES

The Organization for Economic Co-operation and Development (OECD) is a fifty-year-old organization with 34 member countries and eight affiliated countries whose activities account for more than 85% of foreign direct investment worldwide. All member countries have committed to follow a set of Guidelines that encourage responsible business conduct, including human rights, labor, environmental, consumer protection, information disclosure, and anti-corruption standards. Each member country has created a National Contact Point (NCP) office responsible for investigating any allegations that multinational enterprises operating in their countries, or through their subsidiaries or partners anywhere in the world, are violating the corporate social responsibility Guidelines.

For the past ten years, NCPs have investigated hundreds of complaints – rejecting some, but, in many instances, issuing findings that call on particular companies to cease certain practices or to remedy specific instances in which the Guidelines have been violated.

In the midst of a ten-year review of the Guidelines, CBI worked with OECD to expand the use of mediation and conciliation to address complaints about Guideline violations. At the request of three NCPs, CBI produced Mediation Manual spelling out when and how informal problem solving might best be used.

THE CBI APPROACH

CBI used a variety of research tools and methods to gain insight into how mediation might be incorporated into the NCP process.

CBI used several approaches to better understand how to incorporate mediation into the NCP process, including:

• Holding discussions to learn what NCP staff would like incorporated into the Manual
• Listening to the challenges and barriers the staff faced when they tried to use mediation in the past
• Researching stakeholder perceptions of the OECD complaint mechanism and the NCP offices’ handling of the complaint process   
• Maintaining communication with the NCP offices throughout the process

Through interviews and research, CBI identified several apparent issues areas. Some NCPs were:

• Unclear about the role of non-government neutrals in the informal problem-solving process and needed to understand how the neutrals' roles would dovetail with the work of NCP members and staff
• Concerned about how effective mediation could be in situations where the debate among the parties is extremely contentious
• Unsure how to manage potential tradeoffs between informal problem solving and the formal complaint investigations the NCPs are required to pursue

RESULTS

CBI completes the Mediation Manual, which includes summaries of recent NCP efforts to apply informal problem solving.

Through CBI’s work with the OECD, a number of NCPs now understand that by hiring a mediator they do not relinquish decision-making authority to an outsider, but instead add an informal problem-solving step to a process that may still require a complete, formal investigation as well. Since a formal investigation could be required, it is usually inappropriate for an NCP itself to facilitate informal problem solving. The NCPs came to realize that a professional mediator can help build trust among parties and that informal problem solving can proceed while a formal investigation is underway, as long as the parallel processes are managed effectively.

CBI recommended that the NCPs add early assessment and convening steps to their formal procedures to clarify what parties should be at the table and what the agenda should cover. The completed Mediation Manual was disseminated to all NCPs and made available online.