Mediation for Aboriginal and Torres Strait Islanders

Aboriginal and Torres Strait Islander people have shown a lot of interest in mediation ever since dispute resolution centres were established.

Mediation is more in tune with the traditional ways of settling disputes in Aboriginal and Torres Strait Islander communities than the legal and criminal justice system.

The adversarial approach used in Australia’s law courts is contrary to traditional ways, and Indigenous people tend to find it alien and unsympathetic.

Mediation, on the other hand, helps communities to:

• keep ownership of disputes
• use elements of customary law and practice
• find solutions that are in keeping with their cultural values

Conflict in Aboriginal and Torres Strait Islander communities tends to affect all community members. So problems can be very complex and resolving them needs a creative and flexible approach.

Our Dispute Resolution Branch, which administers the centres, has been invited to a number of remote Indigenous communities to help community members resolve many types of conflict. With mediation, everyone involved in the problem gets to have a say, so the solution is more satisfying than a court order from outside.

On most occasions, our mediators have succeeded in bringing disputing community members together to discuss their differences.

We work closely with communities to make sure that we deliver our services in a culturally sensitive and appropriate manner.

Indigenous mediators

A number of our community mediation panels include Aboriginal and Torres Strait Islander mediators. 

Sometimes we have found that Aboriginal and Torres Strait Islander clients prefer the assistance of Indigenous mediators. In other cases they prefer mediators who are of another cultural background.

We ask Indigenous clients their preference regarding the cultural background of mediators. Also, the pre-mediation interview may be conducted by an Aboriginal or Torres Strait Islander person.

Confidentiality, privilege and impartiality

Those involved in mediation decide the degree of confidentiality. Mediation in Aboriginal and Torres Strait Islander communities often involves large groups of people, and the issues under discussion tend to be public in nature.

The parties may often view concepts such as confidentiality differently. However, mediators take an oath of secrecy. They promise that they will not discuss particular mediations publicly.

In addition, the process of mediation is ‘privileged’. This means that nothing said during mediation can be used in a court of law.

Enforceability of agreements

Normally mediation agreements are not legally binding, but the people concerned can make their agreement enforceable if they choose to.

When the agreement is drawn up, the participants include a statement saying that they want the agreement to be legally binding. A solicitor can then draw up the necessary documents.

If solicitors are present at the mediation, they can draft the agreement in a legally binding form then and there.

Training

As well as providing mediation services to Aboriginal and Torres Strait islander communities, we provide dispute resolution training for many Indigenous individuals, organisations and communities.