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Aboriginal Law Bulletin (ALB)
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Sauve, Madeleine --- "Mediation: Towards an Aboriginal Conceptualisation" [1996] AboriginalLawB 26; (1996) 3(81) Aboriginal Law Bulletin 10

Mediation: Towards an Aboriginal Conceptualisation

by Madeleine Sauvé

Generally, those of us trained in the `Western' model define mediation as a process of assisted negotiation, and negotiation as something done with a view to reaching agreement on issues. In keeping with that model, the Queensland Community Justice Program defines `mediation' as follows:

`[A] highly structured but informal process managed by two mediators, who guide the disputants through a number of stages in order to assist them in identifying and exploring their concerns, generating options for change, testing the options and negotiating a mutually acceptable agreement. The neutrality of the mediators and the confidentiality of the session are regarded as essential to the process. The mediators' involvement in the dispute begins and ends with the mediation session. They are concerned with the process of communication and negotiation, and not the content of the negotiation'.

In the course of my follow-up research on a Mediation Training Project which had been carried out by the Community Justice Program in the community of Hopevale in 1993, I came to understand that the Aboriginal conceptualisation of what `mediation' means bears little resemblance to this `Western' model.

As I listened to the Guugu Yimithirr people of Hopevale express what was important to them with regard to the mediation process and its benefits, it became clear that outside of the `Lets talk about it' construct, we're simply not talking about the same thing. That `mediation' in an Aboriginal context means something quite different originates, I believe, from divergent, if not mutually exclusive, points of departure about relating generally and about community specifically. It is this reality which renders virtually every tenet of mediation, as defined above, as wholly or partly untenable.

If the `success' of the Mediation Training Project in Hopevale were to be measured by the number of active mediators emerging from the training, the number of disputes brought to those mediators, and the number of disputes resolved through this negotiated process, then the failure is near total and decidedly abysmal.

I'm proposing that the key difficulty in effectively practicing Community Justice Program mediation in Hopevale is that the cognitive, problem-solving orientation of the `western' mediation model is far too simplistic, and thus inadequate to achieve what Aboriginal people need and hope mediation will achieve. They seek a change of heart, a transformation, a healing of relationship and spirit--not simply a mutual commitment to honour the terms of an agreement in the future.

In view of what I understood people to be saying about mediation as a process for resolving conflicts, I would like to tentatively offer how the Guugu Yimithirr might more accurately define `mediation' as they understand it.

Mediation is an unstructured, informal conversation `under the mango tree', managed by respected, knowledgeable elders who assist those harbouring hate towards one another to express their anger in a controlled environment. The role of the mediator is to draw out the deep-rooted causes for the spiritual ills which are presenting in anger and violence. The mediator contributes to the healing process by teaching, offering advice and guidance, in effect `answers', for the individuals to think about, and potentially to be changed by. Ultimately the goal is the transformation and healing of the diseased individuals through transformational learning.

Mediators must of necessity be fair-minded and carry moral authority in the community at large. The mediator's involvement is expected to have spanned the lifetime of the individual. They are concerned with the process of healing the individuals, as opposed to merely symptomatic remedies. Neutrality and confidentiality are non-issues.

While both models have `settlement directed talking' in common, the key distinctions between the two may lie in what it is that needs settling, and what is the quintessential goal of settlement.

`Settlement' in the Aboriginal sense has to do with relatedness, with a construct of `community', not a `settlement which is separable from the whole and which pertains exclusively to the individual disputants, as is primarily the case in `Western' understandings.

What needs `settling', or redress, is not `issues', but relationship. Therein lies, I believe, the key distinction in terms of point of departure between the two conceptions of `mediation'.

`Settlement' means reconciliation: reconciliation of inner conflict (source of illness), reconciliation with the `other' (disputants), and reconciliation with the community (clans from all sides). Extrapolating from the work of psychologist Barbara Miller, it would make sense that the Aboriginal individual might not experience self and other as absolutely separate; that self and kin/clan/community may be so intrinsically bound as to take on similar meaning.

It has been often noted that, due to the nature of Aboriginal family and kinship ties, the overwhelming majority of disputes are expected to be multi-party rather than single-party disputes. I would suggest that virtually all disputes, by definition, are `multi-party'. Conflict, whatever its substance, does not belong exclusively to individuals. It belongs, in a very practical sense, to the community, as is evidenced in very common manifestations of kinship obligations vis à vis declared allegiances in most any dispute.

If `settlement' has to do with the Aboriginal premise of relatedness and construct of community, then it would follow that the goal of `settlement' is not in an important or primary way attached to the resolution of the `issues' and the generation of `terms of agreement'. Such `resolutions' may, or may not, be by-products of the essential goal which is, I believe, reconciliation; reconciliation achieved through a `change of heart' and a healing of relationships and spirit.

Concepts of empowerment

Mediation is frequently alluded to and praised as a process which empowers the individuals to resolve their own conflicts. It is therefore consistent with the principle of empowerment of Indigenous peoples, and is significantly closer to traditional ways of dealing with disputes in that it enables those most directly involved to work through the issues together.

There is no doubt that any mechanisms that might distance Aboriginal justice needs from white man's courts is overwhelmingly to be preferred. Aboriginal experience of the adversarial legal and criminal justice system of white Australia has been, at worst horrific, and at best unrelentingly ethnocentric.

Both the Royal Commission Into Aboriginal Deaths in Custody and the work of the Legislative Review Committee highlighted mediation processes as being appropriate mechanisms for Aboriginal and Torres Strait Islander people in managing conflict.

The promise of mediation is that it will allow Communities to retain community ownership of disputes and to respond to them in a flexible manner; to make possible the creation or re-creation of conflict resolution mechanisms which are in harmony with the existing cultural ethos.

The essential difference between mediation in the `Western' sense which seeks to empower individuals, and mediation in the Aboriginal sense which seeks to empower the community, is an important one. The form which `mediation' needs to take in order to achieve `cultural appropriateness' is tied to a recognition and respect for that difference. Manifestations of that difference are readily discernible in the ways in which two key tenets of mediation, neutrality and confidentiality, are experienced in each of the contexts.

Neutrality and the ethic of non-interference

The standard `Western' model of mediation asks that the mediator be `neutral'. More than impartial, as in unbiased in favour of or against one of the parties, it generally means neutral about the outcome. That is to say, the mediator's values do not surface and are understood to be irrelevant to the outcome. Why is being `neutral' a highly regarded precept in `Western' mediation models? The disputants' right to control the content of the discussion and to freely judge the value of potential solutions is inviolable. In order that any agreement be honoured, it must be fully and internally endorsed by the individuals themselves. That the mediator be respected (held in high regard by the disputants' society), is not particularly relevant; that s/he be highly competent in the process work is relevant. `Neutral', then, has little to do with `fair', seeing as how it is not the mediator's role to judge. It is the disputants who consensually determine `fair.'

In Aboriginal society, it is imperative that the mediator be respected, because it is the moral authority of the community at large that s/he brings to the process. This moral authority must be powerful enough to cause the individual to `think about it', what the mediator has said or advised. Traditionally, heads of families are expected to advise and counsel those in trouble.

Respect for the mediator and their reputation for fair-mindedness far outweighs concerns about neutrality. In a small, tightly bonded community the mediator, of necessity, will be known to the disputants, know the history and nature of the dispute, have family ties and history, and so on. Such a reality is not only desirable but essential. As stated by Pastor Rosendale at Hopevale community:

`It's got to be a mediator of the Guugu Yimithirr tribe, you know. Who relates more ... Has an understanding which is already there ... You have to live with people a long time'.

Confidentiality and the concept of privatisation

Where a dispute is construed as belonging to the individual, the concept that its nobody's business but their own evolves readily into an ethic of confidentiality. In mainstream urban culture disputes are privatised.

In Aboriginal society, close-bonded living arrangements and kinship obligations render the privatisation of disputes rarely possible. The role of gossip--the Murri grapevine--may well be an important aspect of maintaining social order.

For the most part, the whole community is aware of the source of the dispute and the history of the families involved. They may well need to be aware of the outcomes of a mediated resolution in order that the moral weight of the community can be brought to bear on agreements, however non-authoritatively that is done (that is, through gossip mechanisms).

The processes of public exposure, ritualised public fighting, and public redress have deep roots in traditional dispute resolution mechanisms. Marcia Langton, in her study `Medicine Square', concluded that these mechanisms have survived in `settled Australia' in Aboriginal communities.

Traditionally, this ritual fighting was controlled and structured, allowing both an outlet for aggression, and at the same time the management of its intensity. Strict rules regulating the acceptable range of expressions of anger and its restraint were maintained by `blockers', who were part of an elaborate kinship structure. Clearly the involvement of extended family in the resolution of disputes has, at least traditionally, served an important purpose. The community witnessed the `clearing' of the anger; the community ensured the safety of the disputants, and the community collectively witnessed and `ratified' the closure of the conflict. The law of reciprocity had been honoured. It was over. For everyone.

The ethic of confidentiality, premised as it is on individualism, is foreign and may well dismantle a powerful tool of social control deeply rooted in culture.

`Mediation' is a concept well ingrained in Aboriginal history and community. It has its own conceptual etymology. If mediation is to be responsive to community justice, this etymology needs to be grappled with in the present day context.

Domestic violence--a mediatable conflict?

It is with these comments in mind that I want to explore whether that degradation, violation, maiming, demoralisation and murder of women which is described as a `conflict' is mediatable? Specifically, whether mediation, as a conflict resolution mechanism, is an appropriate process for achieving the goals of protection of women and their children, and the provision of their security and safety.

Adherents of the `Western' mediation model are unequivocal on the issue of mediating issues of `domestic violence'. The answer is no, not ever. Keeping in mind that the model is founded on the concept of `negotiating for oneself', it follows that an abused woman whose sense of self is significantly disintegrated would be incapable of `negotiating for herself', rendering the process a mockery. Ethically, then, it would be unacceptable to expect a woman to literally `bargain' for her personal health and safety and that of her children. Given that she has an absolute first need for physical safety, the `protection' remedy (courts, restraining orders, gaol) would seem infinitely more appropriate. Also, if she lives in a large centre where women's shelters and rape crisis centres may exist, well, she might have access to a temporary hide out.

This argument is a strong one in its own context. It rests on 3 key assumptions however; those concerning `settlement' and the individual nature of conflicts as discussed above, and that `protection' remedies in fact effect safety. Given that virtually none of these assumptions hold true in an Aboriginal community, it is no surprise that Aboriginal people commonly identify family fighting and domestic violence as concerns suitable for mediation.

It must be stated unequivocally that Aboriginal women's experience of the white world of `justice' has been primarily that from which one seeks protection, rather than pursues as a source of protection. As just one example, I have been recently informed of the case of an Aboriginal woman being baton raped by 5 policemen. While this may be an isolated incident, I believe that some variations on a theme are common, if not prevalent. Moreover, as the Royal Commission Into Aboriginal Deaths in Custody report makes clear, involvement with the white legal system is perilous indeed.

In fact, an Aboriginal woman who charges her husband/brother/father with violent acts is responsible for whatever dangers or death may befall him once he passes through to the justice system. Needless to say, the intensity of the social disapprobation she would be made to endure in the context of a small, bonded Aboriginal community would be intolerable. She would be hated by the family. Better the beatings.

Securing a restraining order to control a perpetrator's access to a woman whilst living in the community is equally counter-effective, if not absurd in a small community. His anger is exacerbated, and his family, now forced to take him in, is also angry. She is now in grave danger.

Moreover, seeking 'protection' from a powerful, inexorable formal justice system might well galvanise the white welfare system into action. They take children.

Within the context of `Western' society, concern with women's protection has underlined the exclusionary policy about mediation and `domestic violence'. Within the context of an Aboriginal community, it is, by high contrast, the legal remedies which compromise women's safety.

Concerns surrounding mediation

While it may be argued that mediation is safer than the existing alternatives in the Aboriginal context, the question remains as to whether it is a potentially appropriate and effective means for beginning to address the alarming prevalence, frequency and viciousness of violence against women.

`Mediation' as defined in an Aboriginal context, and construed as a healing process seeking to address relationships, may well have an important place in the mosaic of strategies which collectively strengthen the fibre of an Aboriginal community. Mediation, so defined, could theoretically provide a safe, legitimate and supportive environment which respects both women and men's primary need for community and family. For women, it may represent the only milieu in which they can give voice to what it is they need and want in a partnership.

Ultimately, however, the degree to which that voice is legitimated and heeded depends on the authority and fair- mindedness of the mediator. The mediator's power is directly related to endorsement from the society at large. As with all `justice' constructs, what is viewed as appropriate and inappropriate behaviour depends on the society's constructs of right and wrong. Thus a mediator's interventions, particularly where they take on an advice giving or a guidance role, will reflect local perceptions of justice.

My deep-felt worry here has to do with levels of social tolerance. I know, for instance, why it is that in the course of a dinner party no-one urinates on the table. I also know that, outside of some tisking and head shaking, the tolerance level for violence against women is very, very high. That a far, far greater number of Aboriginal women die at the hands of their partners than any deaths in custody, is representative of what I mean in terms of social concern, if this is to be measured by government response.

So, I know it is definitely not okay to urinate on the dining table, and I know it's not okay that Aboriginal men die in prison; but it is apparently only a source of discomfort to society that women are beaten to death and girl children are raped.

Tolerance increases still more when the aggrieved party belongs to the offending group itself. This is the case for women generally, and for Aboriginal women living in communities, significantly more so. The conditions conducive to high levels of tolerance come together simultaneously in communities: intimacy, cultural closeness, homogeneity. Conduct considered outrageous by an outsider is endured by one's familiars.

If, as suggested by Donald Black, conflict management is isomorphic with its social field, then it expresses and dramatises that social field in a pure and concentrated fashion. Like fractals, it resembles the whole of which it is part, and, in effect, recapitulates and intensifies its larger environment. Consider, then, a larger environment in which the level of tolerance for women bashing, child sexual molestation, and violence is high. What does that mean for victims looking to a conflict resolution mechanism which operates predominantly on social controls through the presence of a mediator?

It is certain that white `justice' offers little remedy for the needs of Aboriginal women living in communities. Mediation, construed as a healing process harmonising with the existing cultural ethos, may well address those needs. However, a significant part of the overall `healing', which cannot be ignored, has to do with the cultural re-creation of the honouring of women. To achieve any of this, we must, all of us, have access to our inner beings. That alcohol and drugs block and prohibit that access further underscores the quintessential need for a focus on healing processes in all the directions; spiritual, physical, emotional and mental.


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