M5 - Learner Manual

When is mediation used (i.e. who are the parties and what types of disputes are likely to be at issue)?

Mediation can help resolve disputes involving:

•  neighbours

•  communities or associations

•  money matters

•  families

•  schools

•  workplaces, and

•  businesses.

Some Aboriginal and Torres Strait Islander people may be concerned about the prospect of mediation, considering it to be a European form of dispute resolution and thus culturally alienating and unhelpful. The reasons for this can be various e.g.:

·       The perceived ‘pseudo-judicialising’ of the mediation process

·       Language barriers

·       Communication barriers (e.g. challenges in accessing reliable and private telephone and internet services)

·       Financial challenges

·       Transport constraints etc.

It is very important therefore for the mediator to take such concerns into consideration. The mediator also needs to be aware that Aboriginal and Torres Strait Islander dispute resolution systems predated the arrival of the British in 1788 by thousands of years.^[1]  It is in this regard that Bauman and Pope point out the following:

The ability of Indigenous communities to deal with conflict in ways that reflect their local practice and reinforce local community authority not only help make communities safer and more enjoyable places to live, they also go some way to addressing the sources of dysfunction and systemic conflict.[2]

The mediator of a dispute involving Aboriginal and Torres Strait Islander people needs to ensure that the parties are involved in the development of a suitable mediation model with which they are comfortable.

In order to effectively incorporate Indigenous culture and experience into a mediation practice, the Victorian Aboriginal Legal Service Co-operative Ltd in its paper “Exploring culturally appropriate dispute resolution for Aboriginal and Torres Strait Islander peoples” [3] emphasises specific issues to be considered when mediating a dispute involving Aboriginal and Torres Strait Island people:

Preparation

Bishop encourages the mediator to properly prepare the parties so that culture can be incorporated effectively into the mediation experience.[4] In this regard, Bishop states that, by outlining ‘a sufficiently certain communication plan pre-mediation session, parties may be able to experience more cultural comfort as to the mediation process, and may enable a mediator to design a mediation plan that will better accommodate the particular needs and demands of the parties’ in dispute’.[5]

In this regard, it may be important for the mediator to ensure that, before commencing the mediation, there is an appropriate recognition of kinship and acknowledgement of traditional Indigenous ancestors.

Venue

The mediator must remain sensitive to schedule the mediation session(s) at an appropriate venue.  This is especially important for remote communities where access to services is difficult.[6]

 

Neutrality and impartiality

Given the detailed and complex structures of Aboriginal and Torres  Strait Islander family networks, kinship obligations, and far-reaching  community knowledge, it may be difficult to find an Aboriginal and Torres Strait Islander mediator who is completely neutral.[7] 

In some cases, therefore, it may be difficult to locate a mediator who is a ‘neutral third party’ for a mediation between Aboriginal and  Torres Strait Islander parties. The issue should be decided on a ‘case by case basis and flexibility is necessary in this regard.[8]

Respected figures within Aboriginal and Torres Strait Islander communities are often valued for their ability to remain impartial.  Nevertheless, care needs to be taken to remind the participants that the mediator’s role is to ‘assist’ the parties and not to ‘solve’ their dispute.[9]

 

Confidentiality

The requirement of confidentiality is often central to a successful mediation process.

The reason for this is to encourage the parties to negotiate honestly, without the fear of having the dialogue used as evidence in subsequent court proceedings.

However, this can be a challenge in some Aboriginal and Torres Strait Islander disputes due to close kinship ties, living arrangements, and the multi-party nature of many such disputes. The Aboriginal and Torres Strait Islander community(ies) involved may be very aware of the dispute and its history.[10] 

Sauvé states that mediated outcomes of Aboriginal and Torres Strait Islander disputes were often made public to bring the ‘moral weight  of the community’  to bear on the agreement.[11]  In a sense, the  community itself ‘owned’ the dispute. The typical requirement of confidentiality can run counter to this notion.[12]

Pringle recommends flexibility in relation to confidentiality.[13]  Kelly emphasises that mainstream mediations will also have exceptions to confidentiality e.g. where employees involved in a dispute agree to notify management of the outcome of the mediation.[14]   

 

Voluntary attendance

The mediator must remain alert to the possibility that the parties may not attend the mediation in a voluntary capacity. Noble refers to example of community leaders pressuring parties into attending a mediation.[15]

‘Gratuitous concurrence’ refers to the situation where an Aboriginal and Torres Strait Islander participant may agree to a direct question that they have not understood.[16] Waterford refers to the:

…a well-known phenomenon of Aboriginal English and traditional Aboriginal language speakers is ‘gratuitous concurrence’, where a listener indicates consent or agreement to a person in a position of authority, even when they do not agree with what is being said (or sometimes when they do not understand what is being asked).[17]

The mediator must be aware of this phenomenon. It can be addressed by the mediator making use of open-ended questions, thus allowing the participant to state their own point of view in a narrative form, rather than indicate agreement or disagreement to a statement made by another person.

 

Language

In a paper by the Family Law Council of Australia, the Northern Australian Aboriginal Justice Agency (NAAJA) submitted that ‘complex language is often used in family dispute resolution proceedings. Many of our clients leave mediations with limited understanding of what transpired in the mediation’.[18]

Since the 1960’s, educators have officially recognised a difference between Aboriginal English and Standard Australian English. 

Aboriginal English  can include differences in grammar, vocabulary, meaning, use and style depending on the location of the particular community. 

Again, this challenge can be overcome by employing open-ended questioning or even engaging an Aboriginal English interpreter if necessary.[19] [20] 

 

Non-verbal communication barriers

Mainstream mediators may regard silence as a sign of evasiveness. 

With a mediation involving Aboriginal and Torres Strait Islander participants the mediators must remain sensitive to non-verbal  communication barriers.  This includes the need to wait until a participant volunteers certain information and to respect silence when it occurs. 

Silence should not be misinterpreted and used against the relevant party.

 

Strong language

Sensitivity to the potential use of strong language may be necessary.

Strong language may not be intended as an attack on the other party or upon the mediator themselves.[21] 

Mediators may need to be open to the possibility that a participant may walk out of the room after a moment of ‘elevated emotion’.[22]

 

Taboo topics 

The mediator should aim to avoid reference to topics that are considered to be ‘taboo’ e.g. genitals, pregnancy and speaking the names of recently deceased.

The participants may also exhibit a reluctance to discuss ‘men’s business’ and ‘women’s business’ with each other. In this light, it may be important for such matters to be discussed with a same gender mediator.[23]