What Do 2 Rights Make? - Mediation of Competing Human Rights
How do you resolve conflicts where both people claim a human right applies to them? For example:
A professor’s service dog causes a severe allergic reaction for one of her students.
An accuser wishes to testify while wearing a niqab (full face covering) at the criminal trial of her accused.
A religious employer requires employees to sign a “morality pledge” not to engage in certain sexual activity.
The right to be free from discrimination on the 15 grounds listed in the Ontario Human Rights Code, such as gender, creed, sexual orientation and disability is limited. One of the limits is where my right substantially interferes with the rights of others. Each of those listed rights is equally important. In addition to the provincial human rights legislation, there are rights under the Canadian Charter of Rights and Freedoms which may also apply.
Some of the most complex and difficult human rights cases involve issues like those listed above. Ultimately the goal of human rights legislation is to increase the experience of dignity and respect for each person in the society.
In cases of competing human rights, both people involved assert a human right. The Ontario Human Rights Commission (OHRC) has developed a policy on completing human rights which includes a framework for recognizing, then reconciling, and finally making decisions about competing human rights claims. http://www.ohrc.on.ca/en/policy-competing-human-rights
As the OHRC’s Competing Human Rights policy states,
Resolving conflicts early helps organizations to address matters before they fester and become entrenched. This in turn helps ensure the health and functioning of an organization, and can avoid costly and time-consuming litigation.
Mediation has shown itself to be effective for resolving conflict in the area of complex human rights. I recently attended a 3-dy course for experienced mediators on this specific area of mediation practice, presented by the OHRC. That organization is uniquely positioned to see the effectiveness of mediation in difficult and complex situations.
According to the OHRC policy,
Mixed interest- and rights-based ADR is particularly effective to address competing human rights claims where no one claimant can assert that they are the only party affected. Rather, it requires creative and cooperative efforts to reach agreement on solutions. These efforts are more likely than litigation to uncover relatively harmonious and durable solutions.
From my own experience I know that when parties work together to resolve a situation which seems impossible at the beginning, they develop mutual respect and a commitment to their resolution. This inspires them to implement their solution and, if there are bumps in the road to implementation, to be able to work through those with renewed good will towards each other.
Here’s another link to read more about competing human rights law. The Shadow of the Law: Surveying the Case Law Dealing with Competing Rights Claims http://www.ohrc.on.ca/en/shadow-law-surveying-case-law-dealing-competing-rights-claims