There are a number of potential advantages and limitations to filing a complaint with a grievance mechanism. Understanding the potential costs, benefits and challenges of each mechanism will help you to make informed and strategic decisions as complainant.
Non-judicial grievance mechanisms versus legal action
Non-judicial grievance mechanisms play an important role in complementing and supplementing the often more expensive and time-consuming legal forms of addressing corporate misconduct. However, non-judicial mechanisms are no substitute for legal action, and severe human rights abuses should still be taken to court whenever possible. Affected groups or communities may have legitimate reasons for their lack of faith in the fair and timely treatment of their case in domestic courts. Often there are also financial obstacles to pursuing legal action. Non-judicial mechanisms, while time-consuming, may cost less than taking legal action.
It is important to keep in mind that some grievance mechanisms will not consider complaints if there are parallel legal or other types of proceedings pending. On the other hand, cases filed with a non-judicial grievance mechanism may cover a broader range of issues than those dealt with in the courts, legitimising their parallel handling in non-judicial forums.
Advantages of non-judicial grievance mechanisms
A complaint may prevent, terminate, mitigate and/or remediate harmful business activities. Some grievance mechanisms can recommend or require specific remedies for the victims, or if it is a problem-solving process, remedies could be agreed upon by the parties. Grievance mechanisms may also involve official fact-finding processes and policy compliance reviews.
Filing a complaint may also help to generate public awareness and media attention, which is often needed to persuade decision-makers such as politicians, investors and other key stakeholders to take action in your favour. A successful grievance process could also lead to better policies and practices by the company or even set a new standard of best practice for similar projects or a sector.
Limitations of non-judicial grievance mechanisms
On the other hand, many challenges exist in the functioning and effectiveness of currently available grievance mechanisms. Many fail to meet basic performance criteria such as accessibility, predictability, equitability, transparency and independence. Others may take an excessive amount of time to resolve complaints, and some have confidentiality rules that might limit what issues can be discussed publicly if mediation is on-going.
In addition, the effectiveness of many grievance mechanisms depends on the willingness of the company to be involved in the process. There can be too many procedural hurdles for complainants to navigate before their issues are actually addressed. While some mechanisms have procedures in place to protect complainants against retaliation, most do not. The process of filing a complaint can also be very time-consuming and resource-intensive. Lastly, many mechanisms cannot issue binding recommendations and even fewer have the ability to enforce outcomes. This means that, even after the process concludes, there is no guarantee the company will actually change its behaviour.