Cunneen, Chris; Luff, Jocelyn; Menzies, Karen; Ralph, Nina --- "Indigenous Family Mediation: The New South Wales ATSIFAM Program" [2005] AUIndigLawRpr 1; (2005) 9(1) Australian Indigenous Law Reporter 1
Commentary
Indigenous Family Mediation: The New South Wales ATSIFAM Program
Chris Cunneen, Jocelyn Luff, Karen Menzies and Nina Ralph[∗]
I Introduction
The Aboriginal and Torres Strait Islander Family Mediation Program (‘ATSIFAM’) was a pilot dispute resolution service designed to meet the needs of Indigenous people in New South Wales. Data from the New South Wales Legal Aid Commission had shown that Indigenous people made very little use of existing family law services, and participation in the Commission’s family law primary dispute resolution (‘PDR’) program had been described by the organisation as ‘negligible’.[1] The pilot program began operation in April 2002 in both rural and urban locations (Dubbo and Campbelltown).
This article is drawn from an evaluation conducted for the Legal Aid Commission by the authors.[2] The evaluation focused on the effectiveness of the pre-mediation and mediation processes in terms of how they met the program’s objectives, and analysed both matters which were referred for mediation and those that went through the mediation process. The evaluation also undertook a review of the relevant literature, and made use of focus group meetings with mediators and field officers, interviews with clients and an analysis of the records of ATSIFAM mediations.[3]
The purpose of this article is to provide analysis of important aspects of the evaluation: in particular, issues regarding Indigenous mediation that have been identified in the literature and the results of interviews with clients who participated in ATSIFAM mediations.
II The ATSIFAM Mediation Program
The objective of the ATSIFAM program was to resolve disputes in Aboriginal communities located in the Dubbo and South West Sydney regions. Two Indigenous field officers were appointed with the role of promoting the mediation program and arranging mediations (including pre-mediation interviews, intake and screening).
Twenty-four mediators were selected by two regional liaison groups. Most were female and six were non-Aboriginal.[4] These mediators participated in a six day general training program, two days of training on domestic violence issues, and four days of ongoing training.
Between mid-2002, when the program started, and December 2003, when the evaluation took place, 51 matters were referred to ATSIFAM. Of these, 23 progressed to mediation. An eligibility requirement for the program was that at least one party to the dispute was Indigenous. A total of 60 people were parties to the 23 mediations. The clients who used the ATSIFAM mediation service were overwhelmingly Indigenous (84%), more likely to be women (55%) and mostly in their early to mid 30s (average age 32 years, median age 35 years).
There were 21 clients of ATSIFAM who were interviewed by the evaluation team using both multiple choice and open-ended questions. Most people interviewed were Aboriginal (81%), a majority were women (52%) and most were in the 30–40 age bracket.[5]
III The Literature on Indigenous Mediation
A great deal of the Australian literature on alternative dispute resolution (‘ADR’) in Indigenous communities relates to the Queensland Community Justice Project (‘CJP’), which was initiated in the early 1990s.[6] This literature therefore tends to be somewhat narrow in focus and internally derivative. Keeping in mind that Indigenous communities are diverse, it follows that Indigenous communities have diverse needs and aspirations. It may be imprudent to assume that all the concerns raised in the Queensland-focused literature are universally applicable to Indigenous communities across Australia.
On another level, at the time the Queensland initiatives were introduced ADR was a relatively young field. There have since been considerable developments in ADR theory and practice. To some extent, this also explains why there is a tendency in the literature to make untempered or uncritical claims about the potential of ADR. In its early stages, ADR was a thriving social movement unencumbered by self-reflection and criticism. The contemporary ADR literature is more theoretically sophisticated and developing critiques have made more realistic assessments of its potential.[7] However, this development in ADR theory and practice generally has not yet yielded substantial comment that focuses on the needs and aspirations of Indigenous communities.
A further qualification is that much of the literature is explicitly practical.[8] It remains the case that most commentators in the literature surveyed have some involvement in the programs they are describing. This does not always provide for a critical and scholarly distance between the researchers and the researched.[9]
The issues emerging from the ADR literature are primarily concerned with the following points: the definition of mediation, neutrality, confidentiality, voluntary attendance, domestic violence, and self-determination and empowerment. We were particularly interested to compare the experiences of ATSIFAM clients with the issues raised in the ADR literature.
A The Definition of Mediation
The definitional debate is important: a definition ‘conveys crucial information about what the definer believes to be most significant about the process’.[10] A primary benefit of mediation is its flexibility and scope for adaptation. Mediation is also an area of rapid and constant development. Thus it is generally agreed that rigid definitions are undesirable: they can be esoteric and unproductive[11] and can stultify development and diversification.[12] Rigid definitions may be just plain ineffective, as the creativity and flexibility of the process may be undermined by inflexible prescriptions.
Nevertheless, definitions do matter. The term ‘mediation’ can signify an assortment of processes that have diverse purposes.[13] Thus it is important to understand ‘how mediation is defined by any particular provider’.[14] Definitions can also have political significance and be sites of struggle that seek to define mediation in ways that favour particular groups.[15] Mediation also derives legitimacy from its proclaimed benefits, many of which will be extended in the defining process.
Keeping the above in mind, the National Alternative Dispute Resolution Council (‘NADRAC’) maintains that its definition of mediation is general, formulated for its use and for general informative purposes.[16] It remains however, that similar definitions inform analysis and policy. NADRAC defines mediation as:
a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator) identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.[17]
Hence the adage that in mediation ‘the mediator controls the process, the parties control the content’. Other proclaimed benefits of mainstream mediation are: voluntariness, consensus, flexibility, informality, empowerment and confidentiality. It is also relatively cheap, accessible and fast.
The neutrality of the mediator is an immediate point of contention with regards to the appropriateness of mediation for Indigenous communities. The classic mediation hallmarks of confidentiality and voluntariness are also identified as key issues that need to be addressed if mediation is to be relevant to Indigenous communities.[18] It is claimed that these cornerstones must be adapted if mediation is to be appropriate and acceptable to the Indigenous community.
However, potential benefits of mediation are evident: the flexibility, informality and focus on empowerment and maintenance of relationships suggest that mediation is a process that could be adapted by Indigenous communities to suit their needs.[19] Flexibility is seized upon as a vital benefit of mediation: it is a common thread in the literature. It also goes without saying that mediation is distinguished as an alternative to litigation and formal justice channels. Resolution of disputes without recourse to the formal justice system is further basis for the claim that mediation is particularly suited to Indigenous communities.[20] Given the historical and contemporary injustice and disadvantage that Indigenous people have suffered at the hands of the formal justice system, these claims are understandable. Mediation also allows flexibility in choice of venue, which allows dispute resolution to take place in culturally appropriate locations.[21] Noble also points out that flexibility of venue has advantages for remote communities where access to services is difficult.[22] Finally, if mediation is a process that can be owned and directed by Indigenous people, it is also more in keeping with the fundamental goal of self-determination.[23]
While the literature is generally optimistic about the potential of mediation, the literature is also emphatic that Western mediation models cannot be unreflexively imposed as a panacea for conflict in Indigenous communities. Enthusiasm must be tempered by caution, understanding, careful consultation and adaptation. In particular, Behrendt counsels against the possibility that ADR mechanisms will be simply transplanted, with token provision for cultural sensitivity training:
it is not enough to establish the mechanisms of alternative dispute resolution into the community, even with facilitators that have undertaken training in cultural sensitivity ... there needs to be creativity and flexibility in the development of real alternatives to the present system.[24]
IV The ASTIFAM Definition
The ATSIFAM mediation model was developed through the process of training field officers and mediators. As noted above, both field officers were Indigenous and 75% of the mediators were Indigenous. The model aimed to mediate family disputes, help family members to talk to each other and air grievances in a way which is not harmful, threatening or judgmental, and assist them in reaching agreement.[25]
The mediation model focused on the complexities of parties living within their communities rather than as individuals in a nuclear family. The model recognised that mediation is not a linear path. There was no time limit set for the mediation; anyone with an interest could be present; intake or pre-mediation sessions could be carried out by either the field officer or the mediators. Mediation was seen in the context of healing rather than as a contract.[26]
During the training session, mediators adopted the following definition of family mediation:
Family mediation is a way of helping family members to work out the problems they are having in their families.
A mediator is someone who listens to family members, helps them to listen to each other, and does not get personally involved.[27]
During the training, mediators also identified the following as the range of matters that might be subject to mediation within the ATSIFAM program, These included:
- Financial issues
- School attendance
- Power plays within the family
- Blended families
- Family violence
- Couples separating
- Problems in ‘mixed’ marriages
- Children’s residence
- Grandparent’s care of children
- Cultural issues
- Parents and adolescent children (drugs, alcohol and violence)
- Roles and responsibilities within the families
- Disabilities within the family
- Family businesses.[28]
While many of these issues are directly family related, the breadth of the issues covered in this list clearly indicated the potential for the mediation program to move beyond what might be regarded as core ‘family’ mediation within Western models.
An analysis of the matters that went before mediation in ATSIFAM also shows the broad range of conflicts that were resolved. Two thirds of matters involved child contact and residence, spousal relationships and parent/child or parent/adolescent relationships – matters traditionally situated within the context of family mediation.
However, approximately one third of the matters might be defined as outside the parameters of the narrow definition of a family dispute, instead relating to broader Aboriginal community concerns (which of course may also involve multiple extended families). For example, some of the broader matters mediated involved a dispute at a high school between a number of young Indigenous women from different family groupings. Another mediation matter involved the ongoing harassment of a non-Indigenous gay man by a number of Indigenous youths from several different families. It was the non-Indigenous party who initiated the mediation as an alternative to court.
The ATSIFAM experience shows that matters for mediation need to be defined flexibly if the process is to be relevant to local communities. That said, it is still important to have parameters concerning what is suitable for mediation. Input from mediators and an Indigenous Reference or (preferably) Management Group are essential for the development of policy and practice in this area.
V The Complexity of Indigenous Mediation Matters
The literature on Indigenous mediation in family law matters acknowledges that one of the foremost characteristics of Indigenous family law mediation is that Indigenous family law disputes can be far more complex than non-Indigenous disputes.[29]
There was agreement among many of the stakeholders[30] interviewed for the ATSIFAM project that Aboriginal family mediations are much more complex and complicated than mainstream matters mediated by the Legal Aid Commission. This point was made by both Indigenous and non-Indigenous stakeholders who had extensive experience with both Indigenous and non-Indigenous mediations.
Complicated family relationships, parties in gaol, the presence of violence, alcohol and drugs all made mediations more difficult. As one person interviewed noted, there were no straightforward mediations over, for example, child access which one would find in mainstream family law conferencing. As one stakeholder interviewed suggested, the mediations
seem to involve many parties, many of whom have other problems to contend with – family violence, drug dependency, illness, death in the family, extensive family breakdown, incarceration of one or more of the parties, community disputes, children’s care issues etc. All this makes the work more labour intensive.
The complex nature of ATSIFAM mediations has a number of implications for both administrative processes and mediation outcomes. Administrative implications include the expenditure of more time at intake and in mediation, and the likelihood that more mediation sessions will be needed. Because of the complexity of these matters, intake and assessment for ATSIFAM was done in person, and as often as was necessary. As one stakeholder interviewed noted,
[i]t may take several visits to many parties to get everyone to the point where they understand what will happen at the mediation and are happy to come along. We were advised early on that phone calls in most cases would not be sufficient.
By way of contrast, in the Family Law Conferencing program all intake is conducted via telephone, by conference organisers at the Legal Aid Head Office.
A significant consequence of this complexity is a greater overall cost per mediation for Indigenous matters compared to non-Indigenous matters.
A further issue related to complexity is the likelihood of reaching an agreement and the length of time such an agreement may last. It is perhaps unfair to expect the same level of ‘success’ in mediation for Indigenous as non-Indigenous mediations, if success is measured by the number of agreements (or partial agreements) reached, in view of the qualitatively different nature of the disputes.
VI Neutrality and Impartiality
One point of debate in mainstream ADR literature is whether or not mediator neutrality is a core value of mediation. The concept of neutrality is generally controversial and problematic, and it has been questioned whether neutrality can ever be achieved.
Boulle places mediator neutrality second only to voluntariness in his list of unresolved issues of definition.[31] Astor and Chinkin note the development of more nuanced and situated concepts of neutrality.[32] In one sense the concept of neutrality is a defining feature of mediation. The concern with neutrality is related to the idea that mediation is a process that empowers the parties, who are meant to work through their own solutions. On this view, mediator neutrality is aligned with non-intervention; thus if this aspect of neutrality is jettisoned, the claim that mediation is empowering is undermined. A difficulty arises where a mediator is confronted with unequal power dynamics in mediation. The question of where it is appropriate for a mediator to intervene to rectify the ‘unfairness and injustice that may arise because of the power relationships between the parties’ is a fraught one.[33] Astor has advocated abandoning neutrality in favour of a focus on maximising party control.[34]
Impartiality is another aspect of the concept of neutrality in mediation. Impartiality (or fair-mindedness) relates more directly to issues of fairness and even-handedness, encompassing ‘matters such as time allocation, facilitation of the communication process, and avoidance of any display of favouritism’.[35] Kelly argues that distinguishing between neutrality and impartiality assists in the discussion of the applicability of neutrality to mediation in Aboriginal communities. Impartiality is essential; an expectation of neutrality is a disadvantage.[36] Other commentators have also identified fair-mindedness and impartiality as concepts preferable to neutrality in the context of mediation in Indigenous communities.[37]
While it is generally agreed that the concept of neutrality is inappropriate in the context of Indigenous mediation and that the concept has been qualified in more recent ADR theory, the discourse of neutrality remains central to mainstream definitions of mediation, and is a powerful concept in the field of ADR. To some extent, this explains the fixation with neutrality in much of the literature. It remains necessary to explore the themes in the literature that mediator neutrality is a Western preference, and that insistence on neutrality in the Indigenous context is inappropriate. As argued by Kelly, it is important to articulate the benefits of a lack of neutrality.[38]
The literature advances ideas about the nature of Indigenous living conditions and socialisation and Indigenous cultural preferences as reasons why mediator neutrality is neither appropriate nor desired by the Indigenous community. At a practical level, given that there is a preference for Indigenous mediators, it may be impossible to find a neutral mediator.[39] Detailed and complex structures of family networks and obligation in small and close-knit communities make this difficult. Moreover, Indigenous perceptions of the role of the mediator are more likely to value respect and moral authority than neutrality.[40] There is often an expectation that a respected member of the community will provide advice and counsel.[41] A mediator who is known by the parties is more likely to be trusted and respected and may be ‘regarded by the parties as beneficial in helping them make a decision’.[42] It is also argued that a respected (rather than neutral) mediator will carry the moral weight of the community, making it more likely outcomes will be respected and obligations kept.[43] The difficulties associated with the expectation of mediator neutrality have been demonstrated in practice. O’Donnell emphasises that in Queensland CJP mediations, care had to be taken to reaffirm that the role of the mediators was to assist in the process, not to solve the dispute.[44]
As noted above, although there is agreement that neutrality per se is not always expected or desired by Indigenous communities, a measure of impartiality can still be desirable. In other words, although the concept of neutrality has a special and sometimes limited applicability to mediation in Aboriginal communities, it would be ill-advised to reject the concept altogether. Astor and Chinkin argue that the preference for fair-mindedness and impartiality is not an outright rejection of neutrality ‘but rather a situated concept of neutrality’.[45]
It should also be noted that some commentators have argued that, in certain circumstances, Aboriginal communities both accept and welcome the importing of outside (or more neutral) mediators.[46] There are cases where parties to a dispute may prefer mediators with no community links so that neutrality and confidentiality are more likely to be ensured. Further, some disputes will affect all community members and in these cases the only appropriate course of action would be to bring in an outside mediator.[47] Situations may also arise where Indigenous mediators decline to handle mediations because family expectations may create pressure for them to take a particular side.[48] In these circumstances it is also appropriate to bring in outside mediators.
On this point, Kelly has emphasised the importance of articulating the viability of impartial Aboriginal mediators.[49] Noble notes that there is recognition in Aboriginal communities that certain people are respected for their impartiality. Here respect for an individual can outweigh concerns about neutrality.[50] Generally, O’Donnell notes that local rules regarding neutrality would emerge over time.[51] Pringle argues that the key lies in finding the degree of neutrality acceptable to individual communities and that this should ultimately be decided on a case-by-case basis.[52]
A Indigenous Client’s Views on Neutrality, Impartiality and Fairness
ATSIFAM clients were asked to agree or disagree with a series of five statements relating to neutrality, fairness and impartiality. The mediations scored very highly on these questions, with 90–95% of the interviewees satisfied with these issues. For example, 90% believed that the mediation session was fair.
There was an opportunity for the respondents to comment in their own words on issues of fairness, and the comments show that both fairness and impartiality were very important to mediation clients. Typically the participants noted the following:
‘I saw two sides of the story. I thought everything was fair.’
‘They listened to both sides and they didn't judge.’
‘It was fair. We weren't pressured to do anything.’
‘They listened to exactly what we had to say and they let us decide as to who has the say.’
‘The mediator intervened regularly to allow each party to have their say and answer questions.’
‘It was very fair – we both got to speak. There were things I've never been game to say to my son and I said them and he had to listen.’
Interestingly, comments made by one participant who felt mediation was unfair related the lack of time to prepare for the mediation and the feeling of a lack of support. Perhaps then, fairness was closely related to participation – the feeling of being able to participate on a comparatively equal footing to the other party.
VII Confidentiality
A further issue raised in the literature is whether ‘confidentiality’ is a Western preference that may not be appropriate or desirable in Indigenous models of mediation. Confidentiality may be difficult or impossible to maintain in an Indigenous mediation because of close living arrangements, gossip, the public nature of conflict and the multi-party nature of disputes.[53]
Sauve argues that gossip may play an important role in maintaining social order, and that the community may need to be aware of outcomes of mediation so that the moral weight of the community can be ‘brought to bear’ on agreements.[54] Young similarly argues that open discussion of any given dispute may be important to invoking mechanisms of advice and admonishment which help resolve conflict.[55] Grose extends the argument to state that demanding confidentiality contradicts the idea that the community maintains control of the property of the dispute.[56]
The literature also notes that, as long as it is acceptable to the disputants, there is no reason why the general rule of confidentiality cannot be applied flexibly.[57] Kelly points out that in mainstream mediation exceptions to the norm of confidentiality are often made.[58] Boulle, in his mainstream text on mediation, argues that confidentiality is not a defining feature of mediation.[59]
While the literature suggests that Indigenous parties should not be expected to maintain confidentiality, it should be emphasised that maintenance of confidentiality will be of utmost importance in some situations and communities.[60] A guarantee of confidentiality may be necessary to engender trust in the process or get parties to consider mediation. It is also essential that mediators maintain the principle of confidentiality.[61]
A Confidentiality and the ATSIFAM Mediations
The ATSIFAM clients who were interviewed tended to support the importance of confidentiality. In answer to the question, ‘how important was it that the mediation was kept private?’, some 71% of people thought it was either ‘very important’ or ‘important’, 19% thought it ‘not important’ and 10% were ‘unsure’. When asked whether they were satisfied that their matter had been kept confidential, 95% indicated that they were satisfied confidentiality had been maintained.
VIII Voluntary attendance
The idea that mediation is a voluntary process for all parties is also identified as problematic in the literature discussing mediation in Indigenous communities. Several authors reiterate Noble’s point that it would be expected that community leaders exert pressure on parties to attend and participate in mediation.[62] Kelly on the other hand, while not wanting to discount respect for Elders, submits that coercion into mediation is uncommon.[63]
In any case, the idea that mediation is an entirely voluntary process can be impugned – the practical reality is that parties are most often compelled to attend mediation, either through court annexed mediation, as a condition of legal aid, financial pressure, social pressure etc.
A ATSIFAM Client’s Views on Voluntary Attendance
Interviewees were asked whether they felt pressured into participating in the mediation. Some 81% answered that they did not feel pressured. However, nearly one in five did feel pressure and in their comments indicated that the pressure to mediate came primarily from the other party.
It is also worth noting that nearly 40% of ATSIFAM mediations were originally referred from either the court or the Legal Aid Commission. Community-based Aboriginal organisations which made referrals included NSW Aboriginal Prisoner and Family Support, domestic violence services and Link-Up. However, the overall proportion of matters that went through mediation and had been referred from Aboriginal organisations is relatively small. There were no matters referred, for example, from Aboriginal Legal Services.
IX Domestic Violence
The question of whether it is appropriate to mediate cases of domestic violence is far from settled. Mainstream literature is quite adamant that it is unsuitable to mediate domestic violence and this view is generally reflected in the policies of mediation services.[64] However, O’Donnell notes that in the Indigenous context, presenting problems often involve family conflict and domestic violence and ‘those are the very issues we found that people wanted mediated’.[65] Several other commentators make the point that Indigenous people commonly identify family fighting and domestic violence as being suitable for mediation.[66] It is also acknowledged that domestic violence is so endemic in Indigenous communities that it may be unrealistic to exclude domestic violence from mediation.
There is a conflict between the desire to allow Indigenous women to access dispute resolution mechanisms, which they may find more appropriate than other channels of justice, and genuine concerns that mediation is an unsuitable process for achieving the goal of protecting women and children. Several commentators argue that, taking into account the particular positioning of Indigenous women and their experiences with the formal legal system, it is undesirable to preclude access to mediation in domestic violence cases.[67]
Sauve argues that key assumptions behind the general policy not to mediate domestic violence do not hold true in the Indigenous community.[68] Although Sauve indicates ambivalent approval for mediation as part of a ‘mosaic of strategies’ to address domestic violence, she remains concerned that the tolerance level for violence against Aboriginal women is too high.[69] She makes a connection between a mediator’s power deriving from endorsement from the society at large and social tolerance of violence, noting that this does not augur well for an appropriate response to the serious social harm of domestic violence.
However, Kelly makes an important distinction between mediation to resolve issues where violence is an aspect of the relationship and mediation to resolve violence in the relationship, arguing that mediation in the latter case is always inappropriate.[70] This distinction provides a way of developing policy and practice that takes account the endemic nature of violence, whilst separating mediation from a process that might be seen to condone family violence.
The issue of family violence came to the fore during the ATSIFAM mediations. On the one hand there was a view that the policy of the Legal Aid Commission in excluding domestic violence from mediation should be applied to ATSIFAM. However, there was also a view that the existing policies and guidelines should be adapted to the specific circumstances of Indigenous people, given the high levels of family violence within the community. It was recommended that the development of policy and guidelines be a matter for an Indigenous Reference or Management Group to resolve, taking into account the distinction developed by Kelly.[71]
X Cultural Difference and Appropriate Training
Indigenous cultural norms require mediation to be organised in certain ways. Furthermore, these cultural norms will vary among Indigenous peoples. The literature discusses this at length and includes the following issues.
A Venue
Pringle notes that decisions need to be made about matters such as whether formal/informal, public/private, community/traditional/institutional venues will be used.[72] These decisions will likely be dependent on the wishes of the parties and the nature of the dispute (eg, whether it is a multi-party dispute, etc.).
A variety of venues were used for mediations with ATSIFAM. The most frequently used venue for mediations was the local courthouse (nearly 40% of mediations). However, other venues included such places as conference rooms, motels, youth centres, church halls and schools. ATSIFAM clients who were interviewed were able to comment on the suitability or otherwise of the venue and 86% thought the venue was suitable. There was also widespread agreement among mediators that telephone link-ups were not suitable for Indigenous mediations.
B Cultural restrictions and prohibitions
Certain topics may be culturally taboo; there may be restrictions on who can talk about which issues (eg, gender differences) or restrictions about who speaks to whom (eg, restricted communication between certain kin or family members).[73] For some Indigenous people, commitment to future events/appointments will be conditional upon family and social obligations.[74]
C Verbal and non-verbal communicative processes
Aboriginal people may speak Aboriginal English rather than standard English; they may speak English as a second or third language; interpreters may be required; non-verbal communicative differences can include avoidance of eye contact or silence.[75] Several commentators refer to the need to de-jargonise the mediation language.[76] Perhaps another way of conceptualising this point is to develop mediation in a language understandable to and resonant with Aboriginal experiences, and using Aboriginal English if appropriate.
ATSIFAM clients were asked a number of questions about whether they understood the mediation process. Some 95% agreed or strongly agreed that the mediation session was straightforward and easy to understand. Slightly more than half (57%) agreed that the mediation helped them reach an agreement and 90% agreed or strongly agreed that mediation allowed them to discuss the issues. Three quarters disagreed with the view that mediation was a waste of time, and 66% disagreed with the statement that mediation had made it more difficult to communicate with the other party.
D Training
Cultural difference and mediation raises the issue of training. Many commentators refer to the need for culturally appropriate training. Kelly refers to the need for Indigenous trainers and curriculum. The ‘Indigenous curriculum must be integral to the model and not simply an appendix to the mainstream training’.[77]
There was widespread agreement among ATSIFAM field officers and mediators that the training of ATSIFAM mediators should be undertaken by Indigenous trainers. It was made clear in the focus groups that this was not a reflection on the professionalism of the trainer that had been used by the Legal Aid Commission. However, the training was not Aboriginal specific, the training model was not Aboriginal-based and the videos were not specific to Aboriginal people. Moreover, Aboriginal viewpoints were not respected in the training.
It was very strongly felt that an Aboriginal mediation program should utilise Indigenous trainers for the mediators and that there were Indigenous people available with those skills. It was suggested in one focus group that a number of potential Indigenous mediators dropped out of the training program because of inappropriate training.
XI Self-determination and Empowerment
The literature on Indigenous mediation discusses community empowerment, ownership and management of the process – themes which can be taken to reflect the spirit of self-determination. However, few commentators explicitly ground their discussion of mediation in terms of Indigenous rights to self-determination. There is a need for greater exploration of how, in concrete terms, mediation will facilitate self-determination.
Grose is one of the few writers who explicitly focuses his discussion on concepts of self-determination, ownership and empowerment.[78] He argues that while it is self-evident that a bundle of strategies, as well as adequate political and economic foundations, are required for the realisation of self-determination, the Queensland Community Justice Program served as a catalyst for harnessing Aboriginal community talent, skills and expertise toward the goal of empowerment and self-determination.[79] Pringle notes that while mediation is not a panacea for empowerment, use of mediation can encourage Aboriginal communities to own, manage and resolve their disputes.[80]
However, for mediation programs to truly embody the principle of self-determination they must have more than a vague rhetorical commitment to the idea. Behrendt is sceptical about mainstream ADR and proposes models that look quite radically different to mainstream models, all the while focusing on the need for self-determination through community control and consultation.[81] Behrendt maintains that it is not enough to establish ADR mechanisms in communities, even where provision has been made for cultural sensitivity training.[82] The flexible accommodation of the diverse needs and aspirations of Indigenous communities is emphasised as a core value of mediation.
Beattie is one of the other writers in this area who critiques the assumptions and rhetorical claims of mediation enthusiasts, especially claims made with respect to cultural sensitivity, empowerment and self-determination.[83] While Beattie concedes that there is enormous potential for mediation, he remains cynical about mediation’s ‘façade of fairness’.[84] Beattie is concerned that the ‘smiling face’ of mediation obscures an insidious industry, the ‘mediation machine’ that that will engender a false consciousness, committing the dispossessed ‘to acquiesce in their own subjugation in the name of fairness and cultural re-empowerment’.[85] Beattie insists that we must interrogate the assumptions of mediation, and the political context in which it is instituted.[86] Beattie also pays attention to the theoretical deficit in mediation literature. He problematises the use of the terms ‘tradition’ and ‘culture’[87] and laments the paucity of theoretical structure in a field that has paid little critical attention to the power of its own philosophy and discourse, and to important issues such as the role of the mediator.[88]
There are themes in the literature which demonstrate commitment to principles of self-determination. Commentators emphasise that it is wholly unacceptable to impose Western models, or ‘transplants’: ‘the literature is strewn with dismal failures of impositions upon Aboriginal communities ... telling them what is good for them’.[89] We can summarise the points made in the literature which fall within a discussion of self-determination as follows:
- No single model should be imposed, room must be made for local adaptations and solutions to emerge.[90]
- The literature acknowledges the importance of extensive consultation with communities[91] and careful planning.[92]
- The importance of having Indigenous staff is emphasised.[93]
- Care should be taken not to undermine any functional existing strategies.[94]
- The larger political context in which Indigenous mediation operates is important, as is political and economic support for the program.[95]
On this final point of the need for proper political, administrative and economic support, Beattie makes the following comment:
White Australia gets to look very magnanimous and enjoy that warm inner glow because it is ‘re-empowering’ Indigenous communities, but what has it really done? If the enterprise is doomed to failure because it has been inadequately resourced or poorly managed, then the oppressor gets to jump back in and assert power again because Indigenous people ‘obviously are not ready for self-determination as yet’.[96]
XII ATSIFAM as an Indigenous Service
ATSIFAM was established as an Indigenous service within the administrative boundaries of a mainstream organisation. It is not suggested here that it is an example of ‘self-determination’, however that may be defined. Rather it is an example of a mainstream legal aid service attempting to overcome the lack of use of its services by Indigenous people. While there was reasonable degree of consultation with Indigenous groups prior to its establishment, and Indigenous people were employed as field officers and mediators, ATSIFAM was not a program initiated in Indigenous communities, nor was it a program under any significant Indigenous control in terms of management, resource allocation or policy development.
Where Indigenous people were able to exercise control was in the promotion of the service among Indigenous people, in the day-to-day defining of matters that would be mediated and in conducting the actual mediations. In other words service delivery was to a reasonable extent controlled in a practical way by Indigenous interests.
Our interest here is to understanding how the service was experienced by the Indigenous ATSIFAM clients we interviewed. ATSIFAM clients were asked an open-ended question about why they decided to try mediation. For many people interviewed ATSIFAM provided either an alternative to court or a possible solution where court had failed:
‘A long draining court case – three to four years and I wanted to put an end to it.’
‘For a start I didn't want to go to court and it was my last option – court. I had harassment from next door and I had to try something.’
‘To avoid a lengthy process and to come to a mutual understanding about the living arrangements for great niece.’
For others it was the possibility of a third party to understand and resolve the conflict:
‘Having some problems with our children and we thought something might come out of it.’
‘To resolve it and try to get the other party to see the problem.’
‘I just felt I needed an outside party – the nature of mediation both sides get to say their bit. I needed a third party.’
For some, ATSIFAM as an Indigenous alternative was available and worth trying in an attempt to resolve the dispute:
‘It was Aboriginal people doing the mediation and had the Aboriginal perspective.’
‘It is very important to have Aboriginal mediators. I would like to be a mediator myself and I've referred people.’
ATSIFAM clients were asked whether it was important that the mediation service was a specifically Aboriginal mediation service. Some 52% thought it was ‘important’ or ‘very important’, while 38% did not believe that it was important that it was an Aboriginal service. A further 10% were unsure.
Typical comments from those who thought it was important that the service was Indigenous included:
‘Because of my situation and the person I was with – family attitudes. I don’t want to educate someone when I'm in a crisis. The other party would have refused to see anyone other than an Aboriginal person.’
‘Because they were Aboriginal. Because Kooris relate to Kooris a lot better.’
‘It was good for an Aboriginal service because up until then everything was being done by non-Kooris. Kooris understand the culture.’
‘Neither my son or I would have used it otherwise.’
‘They know the Aboriginal people.’
‘Aboriginal people can sort of understand each other’s problems and most of the time a dark person won’t talk to a white person.’
ATSIFAM clients were also asked whether they would have used a non-Aboriginal mediation service, if ATSIFAM had not been available. Less that half (43%) of those interviewed would definitely use a non-Indigenous service. A majority either would not use a non-Indigenous service (38%) or were unsure (19%).
The results from the interviews show that for a majority of people interviewed it was important that an Indigenous service was available, and that many would not use a non-Indigenous mediation service.
A Aboriginal Mediators
At least one mediator[97] was Aboriginal in 86% of the mediations of those interviewed. Interestingly there were mixed results to the issue of whether it made a difference having an Indigenous mediator. Some 47% said it did make a difference, 43% that it did not, and the remainder were unsure.
Those people interviewed who thought it was important to have an Aboriginal mediator concentrated on the importance of being able to communicate and were generally more articulate about their reasons for wanting an Aboriginal mediator:
‘Because we could relate more with her – we had previously done things with lots of white people and it was good having Aboriginal people to talk with.’
‘It was so much easier to talk – we didn’t have to lay out the culture or explain the unwritten Kooris laws.’
Those who thought it made no difference tended to be concerned with the nature of the dispute, and were of the view that ‘anyone would have done’.
Perhaps it is more important that the service is Indigenous rather than that the mediators be Aboriginal themselves. In this sense the Indigenous service comes to be defined by its particular policies and processes and their advertising, and the field officers who conduct the most important initial work of getting Aboriginal people into the mediation program.
B Longer Term Impacts from the Mediation
ATSIFAM clients were asked if the agreement has lasted. No timeframe was placed on this question given that those interviewed had participated in mediation anywhere up to two and a half years prior to the interview. Some 48% of those interviewed stated that the agreement has lasted. Clients were also asked whether their original dispute was better or worse since mediation. Some 38% thought their dispute was either ‘much better’ or ‘better’; 28% thought it was the same and 29% thought it was worse.
Those interviewed were also asked whether they had learnt anything from mediation that might help them find solutions to other problems and 62% of participants stated that they had learnt from mediation. Comments from this group included:
‘Generally because I know if both parties are willing, even a little bit, you can find an amicable solution.’
‘In the future I know ATSIFAM is there and I can approach them.’
‘It helped me focus. My main objective was to see my children and I stayed focused.’
‘Yes, because you can always talk and solve problems.’
Nearly all those interviewed (90%) would use mediation again. When asked if they would recommend ATSIFAM mediation to a friend, if they had a similar problem, only 5% said they would not recommend the service.
XIII Conclusion
The results of the client interviews suggest that ATSIFAM was a successful mediation program across a range of measures.
- If we measure success by outcomes such as agreements reached, then nearly three quarters had reached an agreement or partial agreement. In addition three quarters were happy with the outcome from the mediation.
- If we measure success through client-focused outcomes such as participation, whether people would use the service again or refer it to a friend, then 90% or more of those interviewed gave a positive response. Furthermore, more than 60% said they had learnt something from the mediation process that could help them find solutions to other problems.
- If we measure success by satisfaction with the process, then the mediations scored very highly on questions of neutrality, fairness and impartiality, with 90–95% of the interviewees satisfied with these issues.
The results concerning ATSIFAM’s success as an Indigenous program are perhaps more ambiguous, but still generally positive. Certainly a majority of Indigenous people interviewed thought it was important that an Indigenous mediation service was available. Many would not have used a non-Indigenous mediation service.
The difficulties with ATSIFAM do not lie so much with service delivery, as with the relationship between the program and the mainstream agency that initiated it. Much of that difficulty relates to tensions between Indigenous control and the development of programs within large non-Indigenous organisations that are driven by a range of imperatives that are not always easily reconciled with Indigenous interests.
At a broader level, debates over definitions of mediation, and whether neutrality, confidentiality and voluntary attendance are ‘essential principles’ of mediation may be less relevant in practice. Most commentators maintain that mediation is flexible enough to adapt to community preferences on a case-by-case basis. Nevertheless it is imperative that models used in Indigenous communities do reflect community preferences. No one style or type of mediation should be imposed or accepted. Local models should be allowed to emerge.[98] This point is connected to the literature stating that extensive consultation and adaptation is crucial in ensuring that mediation is appropriate for Indigenous communities. One of the strengths of ATSIFAM was the role played by Indigenous staff in defining the matters that would be mediated within the broad rubric of family mediation.
The ATSIFAM experience also shows that perceptions of fairness, of confidentiality and voluntariness were important to the majority of clients undertaking mediation. We do not suggest, however, that the results of this research can be generalised to all Indigenous communities throughout Australia. There are significant cultural and historical differences between Indigenous peoples that will impact on how mediation might operate in a particular setting.
Finally, we should not confuse effective service delivery with self-determination. This point raises a much broader question about the extent to which mainstream agencies have the administrative and political flexibility to engage in a good faith commitment to self-determination and the processes involved in self-determination (including consultation and negotiation, appropriate funding and resources, training, Indigenous staff and community control).
[∗] Institute of Criminology, Law Faculty, University of Sydney.
[1] New South Wales Legal Aid Commission, ATSIFAM Pilot Project, 1.
[2] The views expressed in this article are those of the authors and do not reflect the views of the New South Wales Legal Aid Commission.
[3] The research team comprised both Indigenous and non-Indigenous people. All interviews with Indigenous clients were undertaken by Indigenous researchers.
[4] Linda Fisher, ‘Healing Through Yarning: Training Issues in an Indigenous Family Mediation Program’ (2003) 14(2) Australian Dispute Resolution Journal 105, 107.
[5] The researchers would have preferred more interviews. However, this proved impossible. Some of the issues limiting the number of interviews included lack of recorded information or inconsistent recorded information relating to clients, no current contact details, temporary residences at time of mediation (such as women’s refuges and caravan parks), and external factors affecting interviews such as funerals.
[6] Scott Beattie, ‘Is Mediation a Real Alternative to Law? Pitfalls for Aboriginal Participants’ (1997) 8(1) Australian Dispute Resolution Journal 57; Peter Grose, ‘Towards A Better Tomorrow: A Perspective on Dispute Resolution in Aboriginal Communities in Queensland’ (1994) 5(1) Australian Dispute Resolution Journal 28; Kurt Noble, ‘Alternative Dispute Resolution: Aboriginal and Torres Strait Islander Initiatives’ (Paper presented at the 3rd International Conference in Australasia on Alternative Dispute Resolution, Surfers Paradise, 1–2 October 1994); Marg O’Donnell, ‘Mediation Within Aboriginal Communities: Issues and Challenges’ in Kayleen Hazlehurst (ed), Popular Justice and Community Regeneration: Pathways of Indigenous Reform (1995) 89; Karen L Pringle, ‘Aboriginal Mediation: One Step Towards Re-Empowerment’ (1996) 7(4) Australian Dispute Resolution Journal 253–270; Madeleine Sauve, ‘Mediation: Towards an Aboriginal Conception’ (1996) 3(80) Indigenous Law Bulletin 10.
[7] Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (2nd ed, 2002) 23–42.
[8] Beattie, above n 6, 64.
[9] Richard Ingleby, In the Ball Park: Alternative Dispute Resolution and the Courts (1991) 5.
[10] Astor and Chinkin, above n 7, 135; Laurence Boulle, Mediation: Principles, Process, Practice (1996) 7.
[11] Boulle, above n 10, 7.
[12] Astor and Chinkin, above n 7, 135.
[13] Boulle, above n 10, 12–14.
[14] Astor and Chinkin, above n 7, 136.
[15] Ibid 135; Boulle, above n 10, 7.
[16] Astor and Chinkin, above n 7, 135 at fn 3.
[17] There is a glossary of ADR terms on NADRAC’s website at <http://www.nadrac.gov.au/> .
[18] See generally O’Donnell, above n 6, 97.
[19] Grose, above n 6, 28–41.
[20] Ibid; NSW Law Reform Commission Community Justice Centres (2003) Issues Paper 23, 103; Pringle, above n 6, 254.
[21] See Larissa Behrendt, Aboriginal Dispute Resolution (1995) 80.
[22] Noble, above n 6, 2.
[23] Behrendt, above n 21; Grose, above n 6; Pringle, above n 6.
[24] Behrendt, above n 21, 71–72.
[25] Fisher, above n 4, 108.
[26] Linda Fisher and David Cox, ‘Healing Through Yarning: The Aboriginal and Torres Strait Islander Family Mediation Program’ (2002) available online at <http://www.leadr.com.au/FISHER_A.PDF> , 5.
[27] Ibid 5.
[28] Fisher, above n 4, 110–111.
[29] Stephen Ralph, ‘Family Court Mediation and Indigenous Families’ (2004) 6(3) Indigenous Law Bulletin 10, 11.
[30] Field officers, mediators and Legal Aid Commission staff.
[31] Boulle, above n 10, 18–19.
[32] Astor and Chinkin, above n 7, 149–154.
[33] Ibid 9.
[34] Hilary Astor, ‘Rethinking Neutrality: A Theory to Inform Practice – Part I’ (2000) 11(1) Australian Dispute Resolution Journal 73.
[35] Boulle, above n 10, 19.
[36] Loretta Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’ [2002] IndigLawB 4; (2002) 5(14) Indigenous Law Bulletin 7, 8.
[37] Grose, above n 6, 32; O’Donnell, above n 6, 98; Pringle, above n 6, 260; Sauve, above n 6, 10.
[38] Kelly, above n 36, 8.
[39] Grose, above n 6, 32; Pringle, above n 6, 260.
[40] Sauve, above n 6, 10.
[41] Pringle, above n 6, 260.
[42] Kelly, above n 36, 8.
[43] Sauve, above n 6, 10.
[44] O’Donnell, above n 6, 93.
[45] Astor and Chinkin, above n 7, 154.
[46] Noble, above n 6, 10; Pringle, above n 6, 260.
[47] Pringle, above n 6, 261.
[48] Kelly, above n 36, 8.
[49] Ibid 8.
[50] Noble, above n 6, 10.
[51] O’Donnell, above n 6, 98.
[52] Pringle, above n 6, 260.
[53] Grose, above n 6, 31, 33; Noble, above n 6, 11; O’Donnell, above n 6, 98; Pringle, above n 6, 261; Sauve, above n 6, 10.
[54] Sauve, above n 6, 10.
[55] Simon Young, ‘Cross-Cultural Negotiation in Australia: Power, Perspectives and Comparative Lessons’ (1998) 9(1) Australian Dispute Resolution Journal 41, 49.
[56] Grose, above n 6, 32.
[57] Pringle, above n 6, 262.
[58] Kelly, above n 36, 8.
[59] Boulle, above n 10, 42.
[60] Kelly, above n 36, 8.
[61] Ibid; Pringle, above n 6, 260.
[62] Noble, above n 6, 10; O’Donnell, above n 6, 97; Pringle, above n 6, 262; Young, above n 55, 49.
[63] Kelly, above n 36, 8.
[64] See generally Astor and Chinkin, above n 7, 328–361, see esp 349–355.
[65] O’Donnell, above n 6, 99.
[66] Grose, above n 6, 33; Kelly, above n 36, 9; Noble, above n 6, 10.
[67] Grose, above n 6, 33; O’Donnell, above n 6, 99; Sauve, above n 6, 10.
[68] Sauve, above n 6, 10.
[69] Ibid.
[70] Kelly, above n 36, 9.
[71] Ibid.
[72] Pringle, above n 6, 264.
[73] Ibid.
[74] Ibid; Grose, above n 6, 35.
[75] Pringle, above n 6, 265.
[76] Fisher, above n 6, 111; Grose, above n 6, 29.
[77] Loretta Kelly, ‘Recent Developments in NSW in Aboriginal Family Mediation’ [2002] IndigLawB 14; (2002) 5(15) Indigenous Law Bulletin 14, 14.
[78] Grose, above n 6, 30, 35–37.
[79] Ibid 30, 37.
[80] Pringle, above n 6, 253.
[81] Behrendt, above n 21.
[82] Ibid 71–72.
[83] Beattie, above n 6.
[84] Ibid 57.
[85] Ibid 58.
[86] Ibid 58–59.
[87] Ibid 61–63.
[88] Ibid 63–66.
[89] Grose, above n 6, 29–30; see also NSW Law Reform Commission, above n 20, 103; O’Donnell, above n 6, 94; Pringle, above n 6, 255; Sauve, above n 6,10.
[90] Grose, above n 6, 30; O’Donnell, above n 6, 98; Pringle, above n 6, 261, 268.
[91] Grose, above n 6, 29; Noble, above n 6, 3; O’Donnell, above n 6, 94; Pringle, above n 6, 265.
[92] Beattie, above n 6, 68.
[93] Grose, above n 6, 29; Noble, above n 6, 3; O’Donnell, above n 6, 94; Kelly, above n 77; Kelly, above n 36.
[94] O’Donnell, above n 6, 89, 94.
[95] Beattie, above n 6, 60; Grose, above n 6, 28, 38.
[96] Beattie, above n 6, 60.
[97] In more than 80% of the matters there was more than one mediator.
[98] Grose, above n 6, 30; O’Donnell, above n 6, 98; Pringle, above n 6, 261.