The manner in which the indigenous population in the so called the aboriginal community are represented in the criminal justice system is bringing a lot of questions according to the Heather and Braithwaite1. The Aboriginal community is increasingly overrepresented and at the same time families are experiencing high levels of violence. Heather and Braithwaite argue that finding a solution of these issues is increasingly becoming hard and difficult particularly when indigenous people become victims or offenders2.
This is also seen whenever they come into contact with the criminal justice system The indigenous Australian community that is the Aboriginal community is cultural sensitive therefore making any attempt to help in dispute resolution among them and other parties become very complicated. For instance looking at the report that was produced by Queensland community justice program (CJP) Aboriginal mediation project the year 1990, it was discovered that the mediation process in dispute resolution on the indigenous community is rather in consistence to the cultural values of the people.
This research paper therefore looks at the mediation principles and how they have been inconsistent to the cultural values of the society especially in resolving family violence. A conclusion is then drawn after coming up with alternative methods to mediation owing to the fact that the mediation process has failed in dispute resolution among the Aboriginal community of Australia.
Introduction Mediation process in the Aboriginal community in the Australia state according to the reports by the Queen community as mentioned above seem to very inconsistent therefore a lot of argument and debates have been raised on the effectiveness of the mediation3. The communities are seen to be aligned on one side leading to proper implementation of the criminal justice system. This implies that the mediation process in the Aboriginal community is never cultural sensitive.
The dispute resolution method practiced on indigenous community does not take into account the traditional values of the society (Moore, 2003). The principles of mediation that are supposed to be observed by the commentators or mediators have not been followed. The indigenous community of the Australian state is very conservative as far as the culture is concerned and the mediation principles applied are not compatible with their values and culture4 . These principles include confidentiality, voluntariness and neutrality. Confidentiality Confidentiality is the ability to make something become private5.
Boulle argues that mediation process will only be successful if and only if privacy and confidentiality of what is being said in the mediation process is kept close/ private. This is contrary to the aboriginal community where the community leads a unique life. Kinship is still observed making it hard to make things confidential. The communal way of life may not allow for privacy. The family members who are involved in the conflict are expected to interact with the mediator prior in order to have some knowledge on the issue and seek for favoritism (Nolan, 1993).
Mediation should actually be kept confidential to avoid public embarrassment that make the parties involved feel inferior before other members of the Society6. Noble (1995) also believes that confidential is the key principle that strives to build trust of family members having disputes in the mediation. This is not applicable to the Aboriginal community. It is suggested that mediator should be a person who lives among the indigenous community and even workers within them according to Noble.
This person will be assumed to be aware of the community’s cultural benefits such as that when involved in mediation; he should be fair as dictated by the community’s values7. Reassuring the families involved in the disputes is very important. Members of the community will give their opinion on who is to be picked as the mediator. That is where he lives and works. This point has also been stressed by Ackfun who argues that maintaining privacy and confidentiality in the mediation process may not be possible since the members exist in small communities and they observe kinship8.
Members are tied to one another as they view other members of the society as relatives. Even though the court system attempt to maintain confidentiality, elements such as the physical arrangement of the community and the idea of kinship try to block out the confidentiality principle to be observed9. Neutrality This is another principle that should be observed in the mediation process according to Kelly (2002). Being neutral implies that the mediator should not be seen to be favoring one party in the mediation process.
Therefore the background and relationship that may exist between the mediator and the parties involved is scrutinized. In other words the mediator is not allowed to have prior knowledge about the disputes and parties involved. If at all he has prior knowledge about the parties and those with disputes, then there is likelihood of unfair hearing arising. The person should actually come out boldly and voluntarily to preside over a mediator instead of being forced. However as much as this principle is a factor to the success of the mediation process, it is at different times difficult to maintain neutrality10.
In most cases, the mediator is found to have prior knowledge concerning justice. He/she must have interacted with the families or parties involved in the disputes. Astor and Chinkin argue that, since neutrality may not be observed and realized in dispute resolution among the Aboriginal community, then the only thing that can be done is to have a mediator showing interest in the outcome of the mediation. The expectations of the Aboriginal family on the outcome of mediation are another issue that hinders the implementation of the concept of neutrality.
The mediator is expected to take side during the dispute resolution in which he is expected to take side and favour either a friend or a family member. In such a case the mediator actually is related to one of the families having disputes who feed him with the knowledge regarding the situation. This makes the whole process of mediation lack neutrality but instead the parties are helped by the mediator to make and reach a decision since the mediator has already the prior knowledge11.
This therefore proves the idea that the mediation process in dispute resolution involving the aboriginal community and other parties is not compatible to the principle of neutrality. Voluntary attendance. The principle of voluntarily requires the parties involved in a dispute to voluntarily agree together and come up with achievable scheme and a mediator of their choice12. This is actually what happens in most mediation process whereby the process may be conducted within a court of law or authorities with relevant knowledge regarding the process. Astor and Chinkin, 1996).
However with respect to the Aboriginal community, the principle seems not to be applicable as such. According to the views of Noble, mediation in Aboriginal communities is only acceptable if its presided over by an old respected person with a well knowledge relating to their culture. This is the person who may be required to assist in dispute resolution. The fact that mediation should be voluntarily according to Moore, Aboriginal community does not observe this because they still view things in the traditional manner.
Council of elders according to Noble have a lot of influence and power in the communities. Elements such as forcing someone to do something or accept something still exist. These are normally done by the respected elders where one party is left dissatisfied after the whole process of dispute resolution has been carried out. Cultural values of the community must just be looked into whether the nature of the mediation is voluntary or not. The mediator will be expected to adhere to the cultural dynamic for it to be fair and practicable. Noble, 1996).
Just to make a brief conclusion on why principles of voluntarily in the mediation process is not applicable to the Aboriginal community, the whole process is cultured sensitive. Elders are accorded their respect and tend to influence decision in the process in order to come up with a resolution. Therefore whether the nature of mediation is voluntary or not the elders still have the influence on the outcome of the mediation13. It is very hard to group the class where the so called Aboriginal community belongs.
They tend to be so conservatism and do things according to their lifestyles. The criminal justice system that is currently being applied is modern yet the society still swims in a pool of traditions that is outwashed by the modern one. The fact that there is lack of neutrality, confidentiality and voluntarily, this makes the mediation process become very odd and of little consequence. The Aboriginal community still believes that neutrality does not exist and so one party must just be favored in the mediation process.
In effectiveness of mediation in solving domestic dispute Among the Aboriginal community, mediation has been unsuccessful when it comes to mediating between spouses especially where domestic wrangle is the issue to be resolved14. This is a society where traditional lifestyles are still practiced. Normally when violence exists between the spouses, men are not considered as the major course of violence but all the blame goes to women. Women, according toHovey, are seen to be inferior members of the society.
Therefore mediation process in any dispute resolution between spouses among the Aboriginal community will automatically favour men and disadvantage women. Men have to say anything over women during the process of mediation. However there are two factors that are considered in the mediation involving domestic violence between a man and a woman according to Noble. First, the interest of the woman must be considered and protected in the process of mediation. The other factor that has to be considered is the consideration of the safety of men if at all they are taken to court following domestic violence15.
Noble view domestic violence among the spouses to be something abnormal among the Aboriginal community and this may be or not through mediation. However mediation does not apply to all cases in a relationship. For instance mediation is not practical in solving violence in a relationship because the process may not be able to distinguish between who is guilty and who is not16. Otherwise issues emerging in a relationship are easily resolved through mediation.
The culture of the aboriginal community does not allow couples to fight therefore a mediator is not allowed to assist any of the party to solve the dispute or help the parties come into consensus. The spouses however are left to agree between themselves and end the conflict. The issues may be so technical that the mediator might not be able to make a final resolution (Catherine and David, 2004, p49). Even though other proposals may be given such as to have mediation in a common ground, the whole process still will not be smooth owing to the fact that violence is the issue to be resolved.
Therefore whether the ground is common or not, mediation in solving domestic violence is not successful17 Research methodology After having critically accessed the limitations of mediation process in dispute resolution among the Aboriginal community in Australia, it is practical therefore to come up with an alternative method that can address or solve disputes among communities. This is because the society (Aboriginal) is cultural sensitive that is they tend to observe their culture so much making them to be rigid to adopt other ways of life18.
The research therefore was carried collecting by information from different sources. For instance interviews were done to the Aboriginal community that was grouped according to gender. Questionnaires were also posted to some individuals administered directly to the individuals who were to participate in the study. A total of twenty house holds were to be interviewed and given the questionnaires. Out of twenty households, ten were to be from young couples and the other ten from old members of the Aboriginal community.