Language selector

7. Organizational process for addressing competing rights

Page controls

Page content

7.1 Quick resolution

Many competing rights situations can be resolved quickly through an informal process that may involve no more than one or two meetings. At the outset, organizations should consider whether the situation is suited to an informal and expedited process. For example, the facts of the situation and the framing of each claim may be straightforward and not in dispute. The parties may already be well-informed about each other’s claims, rights and obligations. They may have shown respect for each other’s interests and be willing to engage in discussions about solutions without delay. A quick process will generally involve running through the analysis with both parties in a quick way. The focus here is less on a precise analysis of the rights at play, and more on finding solutions that benefit all sides and respect human rights.

Example: A community centre plans to celebrate National Aboriginal Awareness Day on June 21st. They partner with the local Aboriginal cultural centre for a full day of events about programs and services and the rich heritage of Aboriginal peoples. The day will open with a “smudging” ceremony. Notices go out encouraging staff and clients to take part. One staff worker raises concern about her asthma and the presence of smoke. Both sides recognize the legitimacy and importance of the other’s interests. The worker wants the ceremony to proceed and the Aboriginal centre wants the worker to take part. They work together on a solution to move the opening ceremony outdoors and redirect smoke away from the audience and the worker.

If the informal, quick process does not resolve the issue, then the organization may decide to use a full and more formal process. However, it is important to consider a quick resolution process first because in the OHRC’s experience, working through a full, formal process is usually not necessary. Workable solutions can be found relatively quickly in most cases of competing rights claims.

7.2 Full process

In a full, more formal process, the framework is applied more rigorously at Stage One to find out if a genuine competing human rights situation exists. The case studies included in Appendix D can help organizations as they work through this part of the process. The case studies are presented in an analysis template that can help organizations frame the issues and assess all relevant considerations. For detailed information on the legal disposition of different types of competing rights cases, see the OHRC’s document, The Shadow of the Law: Surveying the Case Law Dealing with Competing Rights Claims.[91]

If, after going through Stage One, an organization concludes that a competing human rights situation does exist, Stage Two will help guide it through the reconciliation process. This policy proposes an alternative dispute resolution (ADR) model to guide organizations through the Three Stage Analysis.

7.3 Alternative Dispute Resolution (ADR) models for reconciling competing rights claims [92]

Type 1: Negotiation

A voluntary process of dispute resolution that does not involve a neutral party facilitator.

Core elements:

  • Recognition by the parties that they both have rights and obligations
  • Power balancing self-restraint by party with greater power in situation (usually the organization)
  • Takes place in “the shadow of the law”
  • Aims at remediation and prevention

When to use:

  • Two parties are involved (an organization and a claimant); OR
  • Three parties (or more) are involved (an organization and two or more claimants)

Why to use:

  • Parties cannot reconcile competing rights unilaterally
  • Parties want to control the process of reconciling competing claims and also make their own decisions about how competing

  • claims are reconciled rather than have a third party control the process and impose decisions on them

  • Transaction costs (money, time, stress) of litigating before tribunals and courts are much higher

  • Principled negotiation is a collaborative method of negotiation designed to preserve the core competing rights of both/all parties; if this is not possible, then aim is to ensure partial enjoyment of the competing rights of both/all parties

  • The most durable settlements are the ones the negotiating parties make themselves

Type 2: Conciliation (also referred to as “mediation”)

An impartial third party facilitates constructive communication and problem-solving aimed at reconciling the claims of competing rights claimants

Core elements:

  • Parties recognize that they both have rights and obligations
  • Parties are involved in crafting terms included in settlements of competing rights claims
  • An impartial third party (e.g. mediator, conciliator) facilitates principled negotiation
  • Impartial third party conducts power-balancing interventions
  • Settlements are legally enforced
  • Takes place in “the shadow of the law”
  • Aims at remediation and prevention

When to use:

  • When attempts at negotiation reach an impasse

Why to use:

  • Parties could not settle their competing rights claims themselves by taking part in principled negotiation; or, organization may not have capacity to negotiate, and/or situation is too complex to address without outside expertise
  • The transaction costs (money, time, stress, relationship damage) associated with litigation are higher, sometimes much higher
  • Self-determination, i.e. parties still make decisions about terms of settlement, as with principled negotiation, but a conciliator (with no authority to make decisions on terms of settlement) will help parties to overcome the barriers to settlement they experienced when taking part in principled negotiation
  • Conciliation is designed to preserve the core competing rights of both/all parties; if this is not possible, then the aim is to ensure both/all parties partially enjoy the competing rights
  • The most durable settlements are made by the negotiating parties themselves

This ADR approach follows the mixed interest- and rights-based mediation model that is often used to address human rights claims. Under this model, mediators help parties to first frame their positions and understand each other’s rights before guiding them through a formal mediation process. The process involves searching for mutually agreed-upon solutions that factor relevant considerations into the context.

Mixed interest- and rights-based ADR is particularly well-suited 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. When parties work together to resolve a dispute, each side feels a sense of ownership of and commitment to the solution, and this fosters good will and mutual respect. Experts in the field of ADR have noted:

Seeing different claimants as fellow citizens and viewing those citizens in a way that is empathetic holds much greater promise than an adversarial process where there are only winners and losers.[93]

Once an organization decides that an ADR process is appropriate, and claimants agree to take part, it will then need to select the type of ADR that best suits the nature of the dispute. Where two or more competing claimants come forward, a conciliation approach might be best. Conciliation is another term for mediation and is defined as a facilitated negotiation involving a neutral or impartial third party. The term conciliation is preferred in this context as it better relates to the idea of “reconciling” claims already recognized as competing human rights under Stage One.

Even if only one claimant has come forward with a human rights claim, the organization might recognize that the claim may affect the rights of others. In this case, the organization may need to “wear two hats” and represent the rights of other individuals or groups potentially affected while negotiating with the claimant. Alternatively, it may choose to involve the individuals or groups potentially affected in the process in some way.

In some situations, it may not be prudent for the organization to take on the role of mediator, particularly where one or more of the parties believe that the organization has played a role in creating or worsening the problem. In some cases, it may be more constructive and to the greater satisfaction of all parties to bring in an external conciliator. This may be the case, for example, where the organization has expressed a view or an interest that creates a perception of bias.

Despite the best efforts of organizations, there will be some cases where ADR methods fail to resolve competing rights claims. Parties may not be willing to make concessions to the other parties involved; they may not be willing to respect or recognize the dignity of the other party or parties. They may believe, rightly or wrongly, that they will “get a better deal” by going to a tribunal or a court. In some cases, litigation is unavoidable. Where competing rights situations do end up before a tribunal or a court, the OHRC’s policy and approach can be a useful tool for decision-makers as they try to resolve these matters in a formal legal setting.

Flow chart for competing rights conciliation

Flow chart for competing rights conciliation


[91] Supra, note 7.

[92] The OHRC wishes to thank Desmond Ellis, Lesley Jacobs, Lorne Foster and Robin Smith of The York Centre for Public Policy and Law for their insights and contributions to this section.

[93] Lorne Foster and Lesley Jacobs, “Shared Citizenship as the Context for Competing Human Rights Claims: Towards a Social Policy Framework,” Canadian Diversity, Volume 8:3, Summer 2010 at 13.


Book Prev / Next Navigation