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Kelly, Loretta --- "Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments" [2002] IndigLawB 4; (2002) 5(14) Indigenous Law Bulletin 7

Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments[1]

by Loretta Kelly

This paper examines mediation in an Aboriginal context. It raises the familiar question asked by many practitioners and academics: when dealing with conflict in Aboriginal communities, is the western concept of mediation applicable? Or are Aboriginal community values and dynamics so different from the mainstream, that the application of mediation becomes cumbersome or culturally insensitive? To answer these questions we must examine the principles of mediation in the context of contemporary Aboriginal culture.

Mediation Principles

Reports arising from the Queensland Community Justice Program (‘CJP’) Aboriginal mediation project (‘the project’) that was instigated in the early 1990s have led to the perpetuation of the argument that mediation is inconsistent with, or antithetical to, Aboriginal community values, dynamics and dispute resolution needs.[2] In these reports, principles of mediation such as confidentiality, voluntariness and neutrality were seen as incompatible with Aboriginal community values and dynamics. A typical statement is that made by the (then) Aboriginal project officer, Kurt Noble, that ‘the hallmarks of classic mediation are severely challenged by adaptations to the Aboriginal community context’.[3]

However, such a statement should not be taken out of context. It arises from the findings of the initial Queensland project (in particular the training conducted at Hopevale), and does not reflect the current situation in Aboriginal communities across Australia. Unfortunately, the anti-mediation arguments continue to be promulgated by well-intentioned academics whose practical mediation experience in relation to Aboriginal communities is limited[4] or non-existent, and who simply re-iterate the old issues raised by CJP staff.[5]

The initial Queensland project has been described in detail elsewhere.[6] The problems encountered at Hopevale related to the difficulty of finding neutral mediators, the questionable voluntary attendance of parties, the difficulty in maintaining confidentiality, and the desire to mediate disputes involving domestic violence and alcohol abuse.[7] These issues are explored generally in this paper, and not specifically in relation to Hopevale, which has been referred to as a ‘community which integrates traditional dispute resolution processes’.[8] Where such traditional laws and customs exist, the dispute resolution system must incorporate these traditions. However, it is submitted that many, if not the majority, of Aboriginal communities throughout Australia no longer practice traditional dispute resolution processes.

Voluntary Attendance

Mediation is often described as a voluntary process for all parties. Indeed, it is a voluntary process where parties agree to mediation, and choose a particular scheme and mediator.[9] However, in some circumstances parties are ‘encouraged’ to participate in mediation by a court or some other authority. I tend to agree with Boulle’s argument that it is simplistic to define mediation in terms of a rigid voluntary/involuntary distinction and that in practice, only the outcome of mediation is voluntary.[10]

Noble argues that in some Aboriginal communities mediation may only be considered acceptable if a respected older person ‘orders’ mediation for parties to resolve that particular dispute.[11] Noble is unclear as to which communities and in what contexts such orders take place, but it is likely that he is referring to a more traditional, as opposed to an urban, Aboriginal community. Although I do not discount the strong cultural value of respect for Elders that extends across most Aboriginal communities, I submit that coercion into mediation by Elders is uncommon. I acknowledge that in the Aboriginal context, the views of an Aboriginal Elder may strongly influence a party’s decision to enter mediation. But even in pre-invasion Aboriginal society, an aggrieved person would have consented (at some level) to a dispute resolution process taking place, and must have agreed to the sanction imposed – otherwise the dissatisfaction of the individual would filter through to the extended family.

The point is that the nature of the voluntariness will not undermine the dispute resolution process, providing the process is sensitive to the needs and cultural dynamics of Aboriginal communities. The mediator would need to work with the parties to ensure that, given the cultural dynamic, the outcome of the mediation is fair and practicable.

Confidentiality

Mediation is often promoted in terms of the privacy of the mediation and confidentiality of what transpires at the mediation.[12] This is contrasted with court proceedings, which are on ‘public record’. Mediation is conducted on a ‘without prejudice’ basis, which means that parties are not allowed to lead evidence presented during a mediation in a subsequent court proceeding.[13]

As the process is confidential, the mediation settlement does not establish precedents for future mediations. This leaves the same questions open for future disputes. Thus confidentiality may not be ideal where there is an issue involving a public interest. Confidentiality is also not ideal where it leads to a failure to scrutinise the behaviour of the parties. This may be important when dealing with disputes between powerful companies and Aboriginal communities.

Noble argues that because of physical living arrangements and kinship obligations, ensuring that disputes are private is rarely possible in Aboriginal communities.[14] Ackfun also points out that privacy within small communities may be difficult to sustain because of the community’s knowledge of the dispute from the ‘Murri grapevine’.[15] This has led many critics to dismiss the use of mediation in Aboriginal communities. Yet in mainstream mediation it is common practice for the parties to agree to make exceptions to confidentiality in particular circumstances.[16] For example, where the parties are co-workers, they may agree to inform their employer of the outcome of the mediation. Not surprisingly, Boulle argues that confidentiality is not a defining characteristic of (mainstream) mediation.[17]

However, in some Aboriginal cultural settings confidentiality may be an important foundation in order for the mediation to take place. For example, a dispute between two families may involve very private and embarrassing elements. In my research into mediation in Aboriginal communities in New South Wales,[18] confidentiality was stressed as essential in building the trust of families in a mediation process. Aboriginal communities said that confidentiality was of the utmost importance for parties to even consider attending a mediation session.

Even where maintenance of confidentiality is not appropriate or desirable for the parties,[19] most practitioners would agree that the mediator must always maintain the confidentiality of what is said in a mediation. This is best practice. The guarantee of confidentiality, especially when the mediator lives and works in the Aboriginal community concerned, is reassuring not only to the parties but also to the mediator.

Neutrality

Mediators are often referred to as being neutral. Neutrality refers to the mediator’s background and relationship with the parties and the dispute.[20] It involves matters such as the extent of prior contact between the mediator and the parties; prior knowledge about the specific disputes; and the degree of mediator’s interest in the outcome.[21] The actual or perceived neutrality of the mediator is considered a significant factor in the success of a mediation.

It has been rightly argued that ‘it is not possible to assert as a matter of definition that mediators are always neutral.’[22] Astor and Chinkin submit that mediators cannot be entirely neutral and that they will have had experiences and hold opinions that affect their view of the dispute and the disputants.[23]

Just as ‘voluntariness’ and ‘confidentiality’ are challenged as essential principles of mediation, some writers argue that neutrality is neither attainable nor desirable in mediation.[24] In particular, resolving disputes in Aboriginal communities may necessarily involve the appointment of a mediator who is interested[25] in the outcome of the dispute. That a mediator has intimate relations with the parties or direct knowledge of the situation may be regarded by the parties as beneficial in assisting them to reach a decision.[26]

On the other hand, Ackfun states that Aboriginal mediators ‘have rightly declined to handle mediations because family expectations required them to take the side of the favoured friend or family member.’[27] Even though a mediator may feel sufficiently neutral to mediate the dispute, it may be the parties’ perception that the mediator is not neutral. In such a case, the mediator should decline to mediate.

Distinguishing the concept of neutrality from that of impartiality assists in the discussion of the applicability of neutrality to mediation in Aboriginal communities. Impartiality is an essential element in mediation. Impartiality refers to even-handedness, objectivity and fairness towards the parties during the mediation process. This includes matters such as time allocation, facilitation of the communication process, avoidance of any display of favouritism, bias or adversarial conduct in word or action.[28] In Aboriginal communities there is ‘a recognition that certain people are respected for their impartiality within the community, and may be suitable to deal with some disputes.’[29] But it would be inaccurate and presumptuous to assume that Aboriginal people are unable to act impartially because of an interest in the dispute. Rather, the benefits of a lack of neutrality and the viability of impartial Aboriginal mediators should be clearly articulated.

Domestic Violence

Most mediation services have a policy of not mediating between spouses where domestic violence is an issue. The reason is because women[30] subjected to domestic violence suffer from severe inequality of power and are, generally speaking,[31] unable to freely negotiate with the perpetrator of the violence. The pre-mediation procedure will assess a victim’s ability to negotiate freely. A mediator should decline to mediate where this is questionable.[32]

Domestic violence has been identified as a problematic issue in alternative dispute resolution. There are a variety of views as to whether disputes where there has been domestic violence should be mediated. These views range from the extreme of rejecting mediation in any family law matter (whether or not there has been domestic violence); to excluding mediation in all cases of violence (except where the victim makes a free and informed consent); to the other extreme of mediating the actual domestic violence.[33]

Noble argues that the mediation of domestic violence in Aboriginal communities represents a particular policy dilemma. This is because of the competing interests of the protection of Aboriginal women and the safety of Aboriginal men if taken into custody following the domestic violence. However, Aboriginal people commonly identify family fighting and domestic violence as being suitable for mediation.[34] Many Aboriginal communities are desperate to reduce the high levels of domestic violence, and ‘will probably be reluctant to exclude these issues as subjects for mediation’.[35]

A distinction must be made between the use of mediation as a process to resolve issues in a relationship (such as residence of, and contact with, children) where violence has or is an aspect of the relationship, and using mediation to resolve the violence in the relationship. Mediation in the former is appropriate as long as significant safeguards are in place to prevent any further intimidation. Mediation in the latter situation is always inappropriate. This is because mediation does not identify a ‘wrong-doer’ per se, and mediators do not make a judgment on who is right or wrong: we assist the parties in finding ‘common ground’. However, there is no common ground where there is violence. A mediator should never assist the parties to reach an agreement to reduce the level of (or even cease) domestic violence – even where the parties request such assistance. This is because domestic violence is objectively unacceptable in contemporary Australian society.

Therefore, other dispute resolution methods need to be developed to address family violence in Aboriginal communities. Restorative justice models (such as victim-offender ‘mediation’) are better suited to dealing with family violence in Aboriginal communities. A restorative justice model differs from mainstream mediation because of its engagement with the community of concern. The presence of the community arguably addresses the shortcoming of mediation in matters involving domestic violence, as the violence is open to public scrutiny. The community is able to support and protect the interests of the victim, and can act to prevent future violence. It can be a forum to display the Aboriginal community's disapproval of violence.[36]

Conclusion

The terms ‘cultural appropriateness’ and ‘cultural sensitivity’ are frequently used in relation to Indigenous programs, but they are rarely explained in concrete terms or contextualised in terms of the community/ies concerned. In relation to mediation, a culturally appropriate model is one that does not replace existing traditional dispute mechanisms, is flexible and is operated by respected community members. There is no single, accepted model of mediation. Familiar mainstream mediation models may need to be revised, or even reconstructed, in order to provide fresh, culturally appropriate models of conflict resolution for Aboriginal communities. A community knows its own problems more intimately than anyone else does, so it is from within the community that the resolutions must arise.

Loretta Kelly is Gumbaynggirr and Dunggatti. She is a lecturer in the School of Law and Justice at Southern Cross University, and is a mediator with Interrelate and Community Justice Centres NSW.


[1]. Fresh developments in the area of family mediation in Aboriginal communities will be discussed in ‘Stirrings’ in the next issue of the Indigenous Law Bulletin.

[2]. See for example A Ackfun, ‘Aboriginal Mediation: A Personal Perspective’ (1993) 1 Qld ADR Review 2; C Nolan, ‘ADR in Aboriginal and Islander Communities: The CJP’s Experience’ (1993) 2 Qld ADR Review 8; M O’Donnell, ‘Mediation within Aboriginal Communities: Issues and Challenges’ in K Hazlehurst (ed), Popular Justice and Community Regeneration (1995).

[3]. K Noble, ‘Mediating with Aboriginal Families: Workshop Conference Paper’ (Paper presented at the 3rd National Conference on Family Mediation, Sydney, 1995) 130.

[4]. See, for example, S Beattie, ‘Is Mediation a Real Alternative to Law? Pitfalls for Aboriginal Participants’ (1997) 8(1) Australian Dispute Resolution Journal 57.

[5]. P Grose, ‘Towards a Better Tomorrow: A Perspective on Dispute Resolution in Aboriginal Communities in Queensland’ (1994) 5 Australian Dispute Resolution Journal 28; K Pringle, ‘Aboriginal Mediation: One Step Towards Re-empowerment’ (1996) 7(4) Australian Dispute Resolution Journal 253.

[6]. Above n 2.

[7]. Noble, above n 3, 130-3.

[8]. Ibid 126. I am not an expert in the field of traditional Aboriginal dispute mechanisms. I believe only the people who practise such mechanisms can be the experts.

[9]. Astor and Chinkin, Dispute Resolution in Australia (1992) 102.

[10]. L Boulle, Mediation: Principles, Process, Practice (1996) 17.

[11]. K Noble, ‘Alternative Dispute Resolution: Aboriginal and Torres Strait Islander Initiatives: Part I’ (Paper presented at the 3rd International Conference in Australasia on Alternative Dispute Resolution, Surfers Paradise, 1-2 October 1994) 10.

[12]. Boulle, above n 10, 41.

[13]. Ibid 41-42.

[14]. Noble, above n 3, 131-2.

[15]. Ackfun, above n 2.

[16]. Boulle, above n 10, 42.

[17]. Ibid 42.

[18]. Last year I consulted with 23 Aboriginal communities on the north coast of NSW in relation to family mediation.

[19]. Noble, above n 11, 11.

[20]. Boulle, above n 10, 19.

[21]. Ibid 19.

[22]. Boulle, above n 10, 21.

[23]. Astor and Chinkin, above n 9, 228. Mediators may not even realise that they hold these assumptions and stereotypes, and purport to mediate with neutrality.

[24]. Boulle, above n 10, 19.

[25]. ‘Interest’ has a variety of meanings. Three of these meanings are relevant to Aboriginal mediation: an attraction/fascination; an advantage; and a concern. It is the latter that I believe is common with Aboriginal mediators who live and/or work in the community in which the dispute is taking place. It is quite acceptable, indeed beneficial, for a mediator to be ‘concerned’ to see the dispute settled, as long as the mediator does not gain an advantage in having the dispute settled in a particular manner.

[26]. Boulle, above n 10, 20.

[27]. Ackfun, above n 1. This is ethically sound. I would not be able to mediate disputes between close family members because of my obligations. In this situation I would recommend an outside mediator. I may be able to mediate in my community where the disputants are not closely related to me, and may not expect me to take sides. In this situation I would not attract any community sanction (such as rejection) if I were to remain impartial.

[28]. Boulle, above n 10, 19.

[29]. Noble, above n 11.

[30]. I acknowledge that men are also victims of domestic violence, but statistics demonstrate that spousal abuse is primarily directed towards women.

[31]. H Carbonatto, ‘Expanding Intervention Options for Spousal Abuse: The Use of Restorative Justice’ (1995) Occasional Papers in Criminology New Series No 4, 12.

[32]. Family Law Regulations 1984 (Cth) reg 62.

[33]. See M Sauve, ‘Mediation: Towards and Aboriginal Conceptualisation’ [1996] AboriginalLawB 17; (1996) 3(80) Aboriginal Law Bulletin 10.

[34]. Noble, above n 11, 11.

[35]. P Hovey, ‘Mediation Training on Hopevale Community’ (1994) 3 Qld ADR Review 16, 20.

[36]. See L Kelly, ‘Using Restorative Justice Principles to Address Family Violence in Aboriginal Communities’ in J Braithwaite and H Strang (eds), Restorative Justice and Family Violence (2002).

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