National Initiatives

National Settlement Conference 2
(Calgary - October 2-5, 2003)

Settlement Accord

Section Seven:
Suggested Models

The Accord and Codes of Good Practice are not legal documents. There is no recourse in law if either party to these documents violates them; rather, they have the power of moral persuasion.

The Settlement Accord Working Group is interested in whether mechanisms can be put in place that will aid in the success of the application of the Accords and Codes to the immigrant-serving sector. The above discussion has indicated that mechanisms or frameworks are needed to support dialogue and feedback and to resolve disputes.

This discussion uses the following definitions:

• Dialogue means “to engage in an informal exchange of views.”
• Feedback is “the return of information about the result of a process or activity; an evaluative response.”
• A dispute is “a verbal controversy, a debate.”

Current Practices

Key informants were asked what dialogue, feedback and dispute resolution mechanisms they currently use.

All informants stressed the primary importance of the relationship between the agency’s representative, usually the executive director, and the CIC project officer. Nurturing this relationship allowed good communication within which feedback could be conveyed and disputes resolved. This works in a vast majority of cases.

However, there are occasional disagreements that cannot be resolved at the local level. Then it is necessary to go to the next person in the hierarchy, usually the manager of the local office. If the concern is not resolved at this level, it might be necessary to contact the regional office and so on, up to national headquarters. If the issue is not resolved at this level, the remaining option is to contact the local Member of Parliament.

This process for dispute resolution is useful to a point. It is entirely appropriate that the issue should first be dealt with through the CIC project officer at the local office. However, if it is not resolved at this level, the situation becomes more difficult. First, there is a power differential caused by the fact that the agency depends on CIC for most of its funds. There is a fear of retaliation if the agency goes above the local manager’s head.

In addition, it is sometimes difficult to locate the individual at the next level. This is especially difficult if the local office refuses to provide a name, as happened to one key informant from the settlement sector who was unable to get this information from a government department.

The process of going up the ladder is fraught with difficulty as extraneous issues of power, loyalty and fear cloud the issues.

The current methods used for dialogue are described above. Committees and roundtables have generally been excellent mechanisms for preventing problems. One key informant said of the committee in which he was involved, “I don’t know what I would do without it!” However, because government representatives are invariably in charge of meeting agendas and because a variety of stakeholders are always present, these meetings are not usually appropriate opportunities for airing differences and settling disputes.

Some suggestions for models

Dialogue

Ongoing dialogue is crucial to any relationship. This promotes understanding, provides speedy feedback, and reduces the risk of misunderstandings and disputes.

A multilevel approach

The settlement sector and the federal government must engage in dialogue at three levels: local, regional, and national. However, before this can occur, either new mechanisms must be developed or existing mechanisms must be expanded or strengthened.

Participants in the dialogue

As the Accord and Codes are designed for the voluntary sector, an argument could be made that the dialogue should be limited to non-profit agencies and government officials. However, this runs contrary to how the settlement sector operates. To best meet the settlement needs of immigrants, non-profit agencies work closely with other community players who may or may not offer settlement services.

The most productive kind of dialogue would then include other service providers.

Figure Two is a schematic representation of this model of dialogue.

Figure Two: A Model for Dialogue

National Dialogue Group
National body with representatives from federal government departments at the national level, national settlement bodies, and other national bodies representing key stakeholders

Regional Dialogue Group
Regional body, including representatives from federal government departments at the regional level, regional settlement associations, and other stakeholders

Local Dialogue Group
Community body including key community players, local government officials and settlement agencies

Settlement Agency

Community

Possible Dispute Resolution Models

1. Negotiation[15]

When disagreements arise, it is always best to try to negotiate a resolution.

What is negotiation?

In its most basic form, negotiation means bargaining to try to bring about a settlement directly with the other party. This is the most common method of resolving conflicts. Parties discuss the dispute and exchange ideas until they can agree on a solution. This process continues until the parties reach a settlement or until one of the parties decides to end the process.

Has it been tried?

This process is being used by settlement agency executive directors and CIC project offices.

The Canadian Council for Refugees (CCR) conducts negotiations, with some success, in its conversations with government about refugee issues. However, no national body representing the settlement needs of newcomers in Canada has tried negotiating with the settlement sector because there has not been a national body with this focus.

However, the problem with applying this model of dispute resolution to the application of the Accord and Codes lies in the contractual relationship between the settlement agency and the federal government.

Conclusion

When disputes arise, it is always best to negotiate a solution. In order to do so at regional and national levels, existing structures need to be strengthened or new structures developed. However, there will always be a limit to how useful the negotiating process will be because of the contractual relationship between the settlement agencies and the federal government.

2. Mediation

What is mediation?

Mediation is another model for dispute resolution. The fundamental difference between negotiation and mediation is that in mediation an impartial third party helps parties toward an agreement. Critical to mediation is the relationship between the mediator and the parties at interest. This relationship has four critical dimensions:

• Independence from the parties and the immediate issues in dispute;
• Mutual acceptance of the parties;
• A focus on the process not the substance of the negotiations; and,
• A focus on helping the parties find a mutually acceptable settlement. The content of the settlement, however, is the responsibility of the parties.

Has this been tried?

This has been tried in England, and an examination of the 1998 Compact on relations between the government and community sector in England is instructive in this context.

The Compact in England is based on the belief that the voluntary and community sector has a vital role as the nation’s third sector, alongside the state and the market. The Compact is very similar to the Voluntary Sector Accord in Canada. There is also a special Compact between the government and the black and ethnic voluntary and community organizations.

It is interesting that the English Compact discusses the resolution of disagreements. It states that, as far as possible, disagreements over the application of the framework should be resolved between the parties. To assist in this process, where both parties agree, mediation may be used, and a Compact Mediation Service has been created. Where the complaint constitutes maladministration, it is the usual practice in England for the complaint to be taken to the Parliamentary Commissioner for Administration.

In a review of the Compact Mediation Service it was found that there was an inconsistent implementation of the Compact. As a result, in March 2003 the Compact Advocacy Programme was launched under the National Council for Voluntary Organisations (NCVO).

The Compact Advocacy Programme invites voluntary organizations to seek their support over breaches of the national Compact by government departments and agencies. Breaches in the national Compact:

• A government agency unreasonably delays a funding decision.
• A government department threatens to withdraw grants because an organization is campaigning against government policies.
• The government fails to consult with an organization on policy changes that will affect it directly.

The Compact Advocacy Programme negotiates with the government on behalf of voluntary organizations and, with the support of NCVO and its partners in the voluntary sector, takes complaints to the highest level.

The Compact Advocacy Programme advises organizations seeking assistance to approach it at the earliest possible stage in a dispute. NCVO treats all cases in confidence and goes public only with the express permission of the affected voluntary organization. In some cases, the Compact Advocacy Programme may take cases to the Compact Mediation Service on behalf of a voluntary organization.

As well as taking on cases, the Compact Advocacy Programme is currently developing a Compact DIY Tool Kit, which will enable voluntary organizations to use the Compact themselves in disputes with government.

Conclusion

The experience in England indicates that if a mediation model for dispute resolution is adopted, provision needs to be made for a mechanism that will support the settlement agency involved to effectively organize its case before it enters the mediation process.

3. An Ombudsman

A number of key informants suggested that an ombudsman might be a good idea.

What is an ombudsman?

The ombudsman's job is to investigate complaints about government organizations. Typically an ombudsman is:

• independent of government;
• responsible for making sure that administrative practices and services of public bodies are fair, reasonable, appropriate and equitable;
• an officer of the provincial legislature;
• able to conduct confidential investigations that are non-threatening and protect complainants against retribution; and
• required to file an annual report with the Legislative Assembly.

An ombudsman is not:

• an advocate;
• a defender of the actions of government;
• a civil servant; or
• an elected politician.

A Voluntary Sector Ombudsman would:

• investigate complaints;
• talk to all concerned parties and see any documents or evidence relevant to a dispute;
• make sure that administrative practices and services of public bodies were in accordance with the spirit and letter of the Accord and Codes of Good Practice;
• recommend changes in any policy, practice, process, guideline, regulation or decision in order to bring it in line with the spirit and letter of the Accord and Codes; and
• negotiate a settlement or recommend a resolution.

Has it been tried?

It does not appear that any country with agreements between the voluntary sector and government has had a Voluntary Sector Ombudsman.

Conclusion

The introduction of a Voluntary Sector Ombudsman is appealing. Such a person would be responsible for making sure that administrative practices and services of public bodies were in accordance with the spirit and practice of the Accord and Codes of Good Practice. Ensuring the fairness of the mediation process should not require any additional advocacy body, such as that in England.

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[15] Modified from Dispute Resolution Models and Land Use, Regan Schlecker, Lower Mainland Treaty Advisory Committee February 2002. Back