9. Best practice mediation service

This section investigates the Mornington Island Restorative Justice Project (MIRJ) in terms of whether it incorporates good practice mediation principles in Indigenous remote communities and whether they appear to work in this situation. Following the review of the documents described above, CBSR made an assessment of whether the MIRJ Project’s design, as articulated in the documents supplied, is aligned with recognised best practice in the field of Indigenous Mediation Services.

In summary

In summary, it is our determination that MIRJ Project is overall very well aligned with best practice in terms of being both a community-led development and Indigenous dispute and conflict resolution process. This evaluation appreciates that the MIRJ Project occurs at a stage in the implementation that may not yet have the presence of local capacity for ongoing sustainability yet to be achieved, but has laid some essential ground work in a very fragile community. In most cases there is alignment in the intention of the MIRJ through documentation, processes and procedures. However, some mis-alignment of perceptions exists in the local community which has been identified in the community survey.

Recommendations

CBSR recommends:

  • More training, mentoring and support of local mediators;
  • Increase local employment in, and management of, the service;
  • Development of a workforce strategy that leverages with Local Implementation Plans, Community Development Funding or Remote Jobs Capacity Program for pre-employment training and capacity building;
  • Increase the use mediators from a variety of families/clans and more female mediators are required;
  • Reinforcement of the Elders rules perhaps through creation of the culturally symbolic significance of the MIRJ Project and thus Junkuri Laka presence in the community;
  • Client satisfaction survey and community friendly complaints process implemented to increase feedback about how the MIRJ Project can be improved;
  • More ongoing monitoring and review of agreements to see if they ‘stick’; and
  • Greater collaboration with service providers and multiple agencies working on Mornington Island.

The determination for examining a community-led program is made based on a tabulation of information provided in both Junkuri Laka organisational documentation and MIRJ Project documentation against the best practice standards described in ‘What conditions will enable Indigenous-led development to thrive in Australia?’ a report written for the Australian Government by World Vision Australia65. This document lists a number of guiding principles that essentially answer the question posed in the report’s title – i.e., the determining factors that need to be present to facilitate thriving, Indigenous-led communities. These factors typically centre on self-determination; the consideration of cultural and environmental factors; and the need for strong leadership and governance.

This determination for examining Indigenous dispute resolution and conflict management is made based on a tabulation of information provided in MIRJ documentation and our evaluation report against critical factors for effective practice described in ‘Solid work you mob are doing’. The latter was a report to the National Alternative Dispute Resolution Advisory Council by the Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project66.

The core factors identified in this report are listed in Table 86 and Table 87 following. Based on CBSR’s review of MIRJ documentation and community research findings we have made a determination of MIRJ’s alignment with these principles, and made commentary as to the nature of this alignment.

It should be noted that some organisational elements of best practice would be best assessed in an implementation review or process evaluation of Junkuri Laka which was beyond the scope of this evaluation of the MIRJ Project conducted by CBSR. Evidence provided in this table is drawn from the detailed findings of this report, and often answers more than one critical factor. Therefore, any duplication is intentional.

Table 84: Best Practice elements of Indigenous-led development and MIRJ
Best practice element Alignment of MIRJ Comment

The principle of Indigenous community-driven development - Indigenous people want to control their futures.

Aligns

This very general principle stated by World Vision is deeply integrated into all materials produced for MIRJ. To a large extent, the design and configuration of services and supports under MIRJ is determined at a community level by community leaders and members. The Junkuri Laka Strategic Plan 2013-2014 clearly articulates this principle of community leadership and dreaming for the future.

Decision-making power, responsibility, resources and authority is established to achieve Indigenous community driven development.

Aligns

As per the above, decision making power is firmly rooted at a community level whereby the MIRJ’s Project’s design under the Junkuri Laka’s ‘rules of the association’. This is particularly strongly articulated in the Constitution for the Junkuri Laka Wellesley Island Aboriginal Law and Justice & Governance Association Incorporated.

The formal agreement with Dispute Resolution branch of the Department of Justice and Attorney general was signed in February 2012 with autonomy and community self-management recognised in the agreement.

Ensuring that culture, law, language and land are at the centre of development

Aligns

Throughout MIRJ Project documentation, the notion of ‘cultural appropriateness’ is strongly emphasised and articulated. This applies to documentation at the core of the Project such as the Junkuri Laka Strategic Plan 2013-2016 states “In the previous strategic plan we expressed the desire to make mediation and peacekeeping work one of the main activities for Junkuri Laka. We wrote this objective stems from the belief that in Aboriginal communities peacemaking processes are much better suited to resolve conflicts than the (criminal) justice system.” Central to the concept that within the culturally traditional idea of peacemaking and contemporary (non-Indigenous) thinking about more holistic ways of conflict resolution can be achieved through mediation services.

A higher level of educational achievement and entry into the mainstream workforce is also the aspiration of many Indigenous people

Aligns intentionally but needs development

Specific aspects of such development includes formal training as well as more informal support, training and mentoring for workers and trainees from the organisation and external providers. Mornington Island Local Implementation Plan (LIP) “deliver community capacity building services that support the local workforce strategy, for example by encouraging and developing the skills and capabilities of local people to enter and remain in the workforce.” Utilisation of other supports such as workforce development and pre-employment training outlined in a workforce strategy is not present.

There were attempts to provide formal training and recognition through National Mediation Accreditation System, however this is yet to be achieved. Work with supporting systems to help the organisation overcoming the barriers to participation in training and employment.

There are environmental conditions that will need to be addressed in order to support community-driven development

Aligns with opportunity for this to be better developed

Based on CBSR’s previous work in the Indigenous Community sector, we have found that environmental considerations often play a determining role as to what services can be delivered, how they are delivered and what the likely outcome of services might be. Such environmental factors often include structural and systemic issues such as a shortage of housing and or transportation options; adverse weather conditions; and isolation from services.

This aspect of service delivery is articulated in general terms in MIRJ documentation in terms of phrases such as ‘‘local solutions’ and ‘local community ownership of services ‘which presumably entails consideration of local environmental factors. Junkuri Larka as a justice organisation involved in such areas as the Alcohol Management Plan and the Criminal Justice System is acutely aware of the environmental considerations for the MIRJ.

Until the wider issues of chronic alcohol abuse, culturally embedded norms around the social acceptability of violence (stemming from early childhood exposure to violence) and a lack of jobs or engaging productive activities (leading to boredom) are reviewed and addressed the Project is always going to struggle to achieve its long term outcome.

We see a ‘chicken and egg’ scenario at work where the environmental considerations are limiting the effectiveness of the MIRJ Project, and yet the MIRJ Project, through Junkuri Laka, is ultimately attempting to provide enough stability in the community to effectively deliver services desperately needed in the community to support development. Rather than attempt to put one service provider’s outcomes in front of the other it may be to better determine how the MIRJ interlocks into the broader goals and common outcomes of the community. Generally a more collaborative approach across the community with multiple service providers and agencies from all jurisdictions working together so that each are aware of the intricate role each plays in the other’s desired outcomes is needed. Whilst mostly positive there were some qualitative findings around a breakdown of relationships between Junkuri Laka and other service providers. In particular relationships have broken down with NGOs like Mission Australia which auspices the 2014 Breaking The Cycle Mornington Island initiative and runs key services (like the Safe House, Night Patrol, Women’s Shelter, Safe Haven and Community Development Facilitator), Save the Children, and organisations like the Wellbeing Centre. In addition, relationships could be strengthened with the Hospital and the Ambulance/Paramedic service.

Aboriginal community development need to be reinforced using an evidence base and effective monitoring and impact measurement

Aligns with recommendations for improvement

The MIRJ Project comes under the Attorney-General’s Department Indigenous Justice and Community Safety Branch and is part of the Indigenous Justice Program. Those projects that receive funding from this branch have particular requirements that must be adhered to, to ensure accountability and transparency. For this reason, the Indigenous Justice Program Guidelines 2012-13, 2013-1467 state that funded projects are to provide self-audited performance reports on a half-yearly basis and also data to measure the extent to which the Project has contributed towards the reduction of adverse contact with criminal justice system. Performance Indicators outlined in the funding agreement and also Service Delivery Standards are stated in the performance reports.

Evaluation methods and performance indicators need to take into account the complex overlapping natures of may Indigenous disputes, and the fact that conventional methods may not provide a reliable or valid picture of effectiveness.”68

It is CBSR’s opinion that not all desired behaviours from the program logic are measured or captured in these performance indicators. We would recommend that the ongoing monitoring of the program includes measures of behaviour change against the program logic. The effectiveness of the program may not always appear in the quantifiable administrative data but more importantly appears in the change in the community behaviours due to mediation services being present and improved capacity for conflict resolution without the need for external intervention. A longitudinal study which tracks people who use violence and compares people who go through mediation with those who don’t to determine if there are any differences in medium and long term outcomes is also recommended to capture the effectiveness of mediation.

This evaluation report provides evidence to the effectiveness of the program from a rationalist, secondary and reflective perspective. There was no pre-measurement or benchmark survey undertaken when the service commenced which limits the empirical evidence required for scientific scrutiny.

Low governance capacity in community development has impeded efforts; and the need for governance and leadership programs for Aboriginal and Torres Strait Islander people to support community-driven approaches

Aligns with attention to ongoing maintenance and sustainability

MIRJ demonstrates very good alignment with this guiding principle. Most notably, the MIRJ design includes a number of components that are specifically designed to enhance and support governance at the local level, most notably restoring local authority and respect for Elders.

The Project was always intended to be community driven and owned. However, it has become reliant on an outside Mediation Coordinator and a handful of local mediators. Furthermore, only one local person does most of the work. Most mediations have been carried out by only one local mediator who has completed 192 meditations. The next most experienced mediators have only mediated on 36 and 27 occasions respectively.

The presence of a highly skilled Mediation Coordinator with a background in mediation, law and computer systems also means it will be very hard to find an adequate replacement. The reliance and dependence on an outsider who has developed close links with the police had led some to perceive that the Project is now being run by the Mediation Coordinator and the police rather than by the local Elders of the Justice Group.

This evaluation report includes recommendations about the need to widen the pool of available mediators and ensure local Elders are given maximum autonomy and control over running the MIRJ Project.

In addition to these general community led development practice elements CBSR examined Indigenous dispute resolution and conflict management principles and guidelines from a range of publications. The critical factors for effective practice described in ‘Solid work you mob are doing’69 was the most extensive and appeared to address most of the principles discussed in other publications.

“The report to the National Alternative Dispute Resolution Advisory Council by the Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project does not purport to represent the vast range of processes and services which are used for Indigenous dispute management in contemporary Australia. Yet, as a collection of studies enquiring into effective dispute management practices, they raise policy and practice issues which have relevance across the range of contexts discussed. Among other things they demonstrate the effective dispute management practice is marked by an ability of practitioners to tailor and design processes, in collaboration with disputants, to match the unique characteristics of each situation.”70 For the purpose of this evaluation the “Solid work you mob are doing” provides insights from eight Indigenous dispute resolution and conflict programs, three full case studies and five snapshots to use for comparative discussion.

The National Alternative Dispute Resolution Advisory Council report on Indigenous Dispute Resolution and Conflict71 describes key principles for dispute resolution practices regarding Indigenous matters which should take into account:

  • Additional intake and preparation issues;
  • The selection of practitioners;
  • Differing concepts of time and place;
  • Attendance and representation at ADR; and
  • Changes to conventional processes and ground rules.

The NADRAC report further discussed 9 key principles for Indigenous conflict and dispute resolution services which have been reflected and expanded on in the ‘Solid work you mob are doing’ which was a later publication investigating the NADRAC principles using case studies.

The report72 identifies best practice principles in Indigenous decision making, agreement-making and dispute management processes. The following compliment the ‘Solid work you mob are doing’ with a further focus on organisational requirements, capacity and processes.

  • Resourcing processes adequately;
  • Strategic planning, preparation and timeframes;
  • Team cohesion;
  • Consent to process;
  • Meeting needs of those outside the process;
  • Community Education;
  • Mapping underlying issues and disputes;
  • An integrated approach;
  • Negotiating local decision-making and dispute management frameworks;
  • Effective group representation roles and responsibilities;
  • Conflict of interest;
  • Implementation;
  • Complaints process; and
  • Employment of process experts and code of conduct.

NZ Laywer published an article in September 2009 by Berry Zondag (current Medication Coordinator) which discusses the fundamental characteristics of alternative dispute resolution processes which must be of a voluntary character, the good faith nature of the parties’ positive engagement in the process with ability to withdraw.73 It was the recommendation from O’Donnell that where new alternative dispute resolution processes are put in place, older traditional conflict management processes must not be discredited or dismantled retaining or restoring authority or key Elders.74 The ‘Ponki’ Victim Offender Mediation Program on the TIWI Islands report found

“Through incorporating cultural values, priorities and governances structures – including kinship protocols, respect for Elders and Traditional Owners, use of ceremony, and approaches to gender makes the Ponki system (alternative dispute resolution program) relevant and effective and respected in the modern Tiwi Society.” 75 Kelly (2006) goes further to conclude that “In any case, just because a service is Aboriginal-specific does not necessarily mean that it will achieve self-determination and meet the needs of local communities. A bottom up, or grass roots approach to service-delivery is the key. Upper management should support dedicated, community orientated Aboriginal people in designing, managing and delivering Alternative Dispute Resolution Services.”76

Our evaluation of best practice in Indigenous dispute resolution is based on a tabulation of information provided in MIRJ Project documentation and our evaluation report against critical factors for effective practice described in ‘Solid work you mob are doing’77 reflecting upon the consistency presented in other publications.

Table 85: Critical Factors for effective practice and MIRJ
Critical Factor Are critical factors present? Comments on the effectiveness of MIRJ

The role of ‘culture’ in Indigenous dispute management.

Intended to be so, but some improvement to practice is recommended

Culture is not a fixed bound entity: Indigenous peoples have distinct cultural identities, values and beliefs, emerging from their past and present conditions.

Has this fundamental aspect of Indigenous life been carefully and respectfully addressed in the design and implementation of effective dispute management processes?

Have the complex range of responsibilities and duties such as inter-personal obligations, rights and privileges defined by kinship relationships been prioritised in the dispute management process?

  • The kinship model, 11 Elders’ Rules and Eight steps were developed in close partnership with local Moyenda Elders over an extended period of time.
  • The 11 Elders’ rules have now been simplified to just 2 – confidentiality and respect. It is questionable if this honours the developmental work conducted to develop these rules with the Moyenda Elders.

Has an understanding of the historical legacy and the underlying reasons for disputes and the ways in which disputes manifest in Indigenous communities been appreciated?

  • MIRJ sits within the Junkuri Laka an Aboriginal owned organisation. Therefore, it is well placed to have a great appreciation of the historical legacy and for Indigenous community disputes.
  • When the issues are symptoms of deep seated or historical antagonism between families or clans people did not stick to their agreements.

Is local practice and local community authority reinforced to deal with conflict, and is dispute resolution undertaken in ways that reflect their local practice? Does the community feel that the processes developed are their own?

  • In the final analysis made by CBSR the MIRJ Project is working because people want it and feel it is leading to concrete actions that are helping the community deal with disputes in their own way. Mediation concerns family business which is an essential part of everyone’s lives on Mornington Island.

Are rituals and ceremonies used appropriately to facilitate building mutual understanding and respect and to restore fractured relationships to mark the end point of a dispute or celebrate the outcome of a dispute in a culturally meaningful way?

  • The kinship model includes elements of the traditional form of dispute resolution ceremony called ‘square up’. For example, the emphasis of kin relationships and Elders’ participation in overseeing the mediation process. The Project has provided a more formal, structured, consistent and safe way of resolving disputes.
  • Establishing a ceremonial peace keeping monument to embed the Junkuri Laka may be needed to ensure that all clans/families feel ownership of it. It has been suggested that something enduring and symbolic like this could further help to bolster Junkuri Laka’s position in the community.

Are Elders’ authority respected in the decision making and dispute management and does the dispute resolution process allow for the various functions they can play in the context of the dispute?

  • The community survey found the majority of participants felt that mediation helps the Elders get respect from the people sometimes (34%) often (29%) and very often (24%) with very few saying hardly ever or never. For the most part Elders are being listened to and taken notice of by adults and less so by young people.
  • Most also felt that Elders get respect and authority back by being unbiased and helpful during mediation. Some feel that Elders are respected or not, based on their past behaviour in relation to alcohol, violence and their ability to work with different clan groups in an unbiased way. Most strongly feel that only respected Elders should be working as mediators.

Does the dispute resolution process design appreciate when there is a need for the separation of men’s and women’s business and are gender issues negotiated with men and women, separately and together as appropriate?

  • The community survey participatory process identified a key part of widening the pool of mediators will involve increasing the number of women available to act as mediators (especially when the parties involved in a dispute include women or if the issues involve women’s business).

The importance of preparation.

Critical factors are present but some additional management of perceptions advisable

The negotiations that occur during the preparation phase have major impact on the success of the dispute management process overall.

Is sufficient time and the resources required to facilitate the design and preparation phases of the process?

  • Investigation into the specific practices of preparation were not in scope. No qualitative comments indicated that there were issues in preparation.

Does the pre-mediation process build relationships of trust between the parties and practitioners?

  • The community survey found that the majority of participants trust that mediations are confidential sometimes (29%) often (25%) and very often (19%) with a few saying hardly ever (16%) or never (4%).
  • Most participants mentioned that it was difficult to keep matters confidential on a small island where everyone is more or less related.
  • There is a perception that it tends to be the families in a dispute rather than the mediators who tend to break confidentiality agreements. However a few also mentioned that mediators have sometimes broken confidentiality as well.

Are the people who conduct intake and pre-mediation trained in preparation techniques which are complementary to dispute management?

  • Investigation into the training records were not in scope. It was recognised that in general more training of mediators is generally required.

Are the ‘right’ parties identified who have authority to settle the dispute and who can make the agreed outcome ‘stick’?

  • The need to employ more family members to ensure impartiality maybe more about managing expectations and perceptions of procedural fairness, as much as improving any real shortcomings of the MIRJ Project.
  • The need for more female mediators has been expressed by community members.
  • Some people feel the right family or clan mediators were not present, for example in one case the mother’s eldest brother should have been present. Often the right Elders are not present “[The local lead mediator] does his best but does not represent all clan groups.” (Woman, 35-44, Support person of someone in a dispute)

Are dispute resolution processes entered into voluntarily by the parties?

  • The community survey found that the majority of participants feel that people are never forced into mediation very often (45%) often (23%) and sometimes (19%). Very few felt that people were forced into mediation.
  • The low level of no shows (4 out of 396 cases) and walk outs (2 out of 396 cases)78 since the inception of the Project suggests that mediation is voluntary. In addition, out of a potential total 457 cases since 2009, the parties to a dispute have chosen not to engage on 52 occasions. Nearly half this number relates to conflict management when the parties involved are not interested in formal mediation.
  • Some people may feel they have been unduly influenced by others to attend mediation and this may be the reason why they don’t stick to their agreements.

Are local people supported to take responsibility for fixing their own problems by initiating dispute management processes themselves?

  • The community survey found that most people say that mediation agreements are only kept sometimes, for the following reasons:
    • Some people go to mediation with no intention of settling the matter and are going for other reasons such as to stay out of jail or use the process for point scoring or political reasons.
    • The mediation agreements are often broken when people get drunk or high or when people become stressed or they hear rumours and trash talking.
  • Some people may feel they have been unduly influenced by others to attend mediation and this may be the reason why they don’t stick to their agreements.

Issues in designing dispute management processes

Intended design is good but more practical activities are required to reinforce the design.

Effective dispute management practices are responsive to, and driven by, the needs of the people to whom the process is to apply.

Do the practitioners have the right training, experience, any potential conflicts of interest, competence and availability?

  • Mediators have not had formal training and it is suggested that the 38 hour National Accreditation Scheme is required.
  • One of the success factors for the MIRJ Project is the outstanding quality of the coordinators that have been involved in the Project since its inception who are dedicated to ensuring there is local practice and local community authority. The first coordinator’s community development ‘slow and sure approach’ was just what was required initially with a very fragile and volatile community with limited patience and support for government initiatives (experiments) that are ‘flavour of the month’ and then withdrawn when funding priorities change. The first coordinator’s approach was perfect for gaining grass roots support during the developmental and implementation stages of the Project. The second coordinator’s managerial, technical, mediation and legal skills have taken the Project to another level by almost doubling the amount of outputs and outcomes achieved since he took over. However, the downside of having such exceptional coordinators is that they make succession planning to full community management and control a difficult exercise. It could be argued that “an irreplaceable former coordinator has been replaced by an irreplaceable current coordinator.” (Key Stakeholder)

Is there co-mediation and/or team approaches that enable practitioners to provide support, debrief, identify signs that the mediator might miss and provide checks and balances managing parties’ perceptions of bias.

  • It is suggested that the Mornington Island mediators could tap into other groups such as Yuendumu, Aurukun and TIWI for support and discussion on managing perceptions of bias, as outside parties might provide this more objectively without the complexities of existing kinship relationships within the group of mediators.

Are situations of conflict responded to promptly to ensure that early intervention ensures that conflicts do not fester, and grievances and fights do not compound?

  • The community survey found there were mixed responses from the mediators surveyed, regarding whether the Elders’ Rules are followed Very often or often (28%) sometimes (29%) hardly ever (14%) don’t know (29%).
  • Some felt that while there is no specific reference to them the basic principles like keeping things confidential, being impartial and showing respect to both sides were always applied. Others were puzzled by the term Elders’ Rules and seemed to have no recollection that they ever existed.
  • Given these rules were developed by local Elders and respected leaders after intensive consultation and many meetings it is somewhat surprising that the Elders’ Rules are not remembered and referred to. Essentially the rules and the people who signed off on them are the architects of the peace making service on Mornington Island. They mark the genesis of an innovative and effective partnership between families, community and government dedicated to using communication rather than violence to resolve conflict.

Does the program identify appropriate interventions that appreciate there are underlying situational or systemic causes and are there complementary strategies before and after the mediation.

  • Investigation of individual mediations as case studies to determine if appropriate interventions were undertaken was not in scope of this project. There were some qualitative comments that there could be more scope for referrals to and from other service providers in the community and more collaboration between service providers.

When ‘big’ meetings are used as interventions is there sufficient preparation to ensure that there is an agreed purpose of the meeting and set ground rules to achieve sustainable results owned by community.

  • Investigation of individual mediations as case studies to determine if sufficient preparation was undertaken was not in scope of this project. The number of big meetings has fallen in recent years. One of the reasons for this to enable the participation of only key parties to a dispute and to be able to focus more on the key issues. Also some of the Project’s activities now fall outside the kinship model such as when dealing with employment related disputes or police complaints. In these cases the kinship model is not used. In addition, some younger people have shown a preference for smaller more private mediations such as in the family home or court house (for increased safety) enabling more focus on exploring grievances and how to address them. In contrast, older people tend to focus more on the need to reconcile disputes through kin connection obligation

Is the venue mediation negotiated with all parties to ensure neutrality and no perceptions of bias interfering with the process and is it appropriate to facilitate ‘putting to bed’ the dispute?

  • More mediations are now held at the Court House. Some participants in the community survey feel intimidated by this while others feel safer if the situation is volatile. Suggest more flexibility on venue which is negotiated with all parties may be required.

Does the dispute management service offer ‘safe’ and non-violent places to air grievances and express strong feelings?

  • The community survey found that MIRJ provides a timely, culturally safe space in which people feel comfortable participating in and are accepting of. Mediation is also felt to be culturally safe because both sides in a dispute save face in a private safe place. It provides an avenue to apologise without shame or losing respect in the eyes of the wider community. Therefore, people feel less need to resort to violence to save face and maintain respect and relatedness. The importance of this cannot be underestimated in helping to maintain peace in a small isolated community like Mornington Island where people have no choice but to find ways of getting along.

Does the process recognise the role of the practitioner as supporting the parties to build their own relationships that are ongoing? Is there recognition for a degree of open-endedness and flexibility about timeframes?

  • Investigation of individual mediations as case studies to determine if appropriate processes were undertaken was not in scope of this project.

Do the practitioners broker an appropriate procedural agreement about whether the process should be confidential or ‘witnessed’?

  • Investigation of individual mediations as case studies to determine if appropriate procedural agreements were in place undertaken was not in scope of this project. There were qualitative statements in the Community Survey that suggested participants should be given the option of signing an agreement and if appropriate, offer for the agreement to be published in the Junkuri Laka newsletter or noticeboard. Behavioural change theory and Behavioural economics suggests that people are more likely to stick to commitments if they have to put their name to it and even more so if the agreement is publically promoted via publishing in a newsletter.

Implementation and sustainability of agreements

Aligns but opportunity to have supporting mechanisms reinforce agreements

The agreement reached in any dispute management process may appear, both to those involved and those ‘outside’ as the most important thing, but ownership of their problems and reaching a resolution can be empowering experience.

Are the agreements reached and decisions made in mediation voluntary?

  • Individual mediations were not investigated as case studies therefore a conclusion about how agreements were reached was beyond the scope of the evaluation. There was some qualitative feedback that where agreements were not kept, people didn’t feel they attended voluntarily therefore, it could be assumed that the decision resulting from such a mediation would have more likelihood not to be perceived as voluntary by that party.

Are agreements written or recorded?

  • Give participants the option of signing an agreement and if appropriate, offer for the agreement to be published in the Junkuri Laka newsletter or noticeboard. Behavioural change theory and Behavioural economics suggests that people are more likely to stick to commitments if they have to put their name to it and even more so if the agreement is publically promoted via publishing in a newsletter.

Are agreements monitored?

  • The community survey found that some community members felt that recalcitrant trouble makers should be sent off the Island to live in another community until they are ready to say sorry. Others talked about the need for a sobering up shelter or residential bush rehabilitation centre for chronic substance abusers, users of violence and habitual petty criminals where people can access counselling and support away from the distractions, and negative influence of peers or older siblings and stress of the township.
  • Investigation of individual agreements as case studies to determine if appropriate monitoring was undertaken was not in scope of this project. There was evidence from community members that agreements were only sometimes kept and that more focus needs to be placed on reality testing agreements and follow up to ensure that agreements are sustainable.

Are agreements reviewed?

  • Investigation of individual agreements as case studies to determine if appropriate review was undertaken was not in scope of this project. There was anecdotal evidence from community members that agreements were not being adequately reviewed or revisited.

Qualities and skills of an effective practitioner.

Indigenous dispute management practitioners need to be competent, and ethical, and supported and resourced appropriately.

Do the dispute management practitioners trust and respect Indigenous parties and have confidence in their ability to resolve matters themselves?

  • The former Mediation Coordinator did not arrive with an agenda, pre-conceived ideas or templates for what had to happen. The model was built from the grass roots up. The same principle applied to the establishment of the PCYC / Changing the Cycle / Banbaji Student Service via Dave Ives, Frank W att and Alan Seckington. In both cases project staff had maximum flexibility to develop and deliver in line with community needs and aspirations. This demonstrates confidence and respect for the community to have the ability to develop a model that would enable the community to resolve matters for themselves.

Do the dispute management practitioners have skills in engaging and building rapport and do they use strategies to identify and check with parties the range of factors that may affect how they are perceived?

  • The community survey asked mediators about their training and there were mixed responses regarding the training mediators received – some were very happy or happy (35%) neither happy or unhappy (36%) or unhappy (29%). Some felt their training had been excellent, others could not remember receiving any training, and a few said they had provided the training to others and to the Mediation Coordinator.
  • Overall most felt that some ‘refresher’ training on mediation would be helpful. The most often mentioned training needs for mediators were as follows:
    • Some want to see and learn from how other communities operate mediations services. Some feel it would be great to have access to a help line or online community of mediators where people could share stories, what works and good practice.
    • Some want more training on how to run a mediation session and talk strongly, effectively and assertively.
    • Some want more training on various elements of mediation such as in-take procedures, preparation of the parties to a mediation and reality testing mediation agreements.
    • Some want more training/mentoring on how to manage confidentiality and impartiality in a small Island community setting.
  • Formal training of mediators under the National Mediation Accreditation System has been planned and attempted but not completed.

Do they have local knowledge?

  • Apart from the Mediation Coordinator, the mediators in MIRJ are all local community members.
  • The length of time the former Mediation Coordinator spent on the ground (4 years) building trust, relationships and developing a model in close partnership with the Moyenda (respected Elders). “Working with them [the Moyenda] to develop something of their own that respected traditional knowledge”.

Do they have the skills to quickly understand a range of other contextual information (legislation, referral pathways, and often complex technical information)?

  • Apart from the Mediation Coordinator, all mediators in MIRJ are all local community members. Capacity for the complex and technical information may be supported through the MIRJ Project Co-ordinator.

Are the dispute management practitioners impartial and if not is their ‘connectedness’ made clear to all parties and checked with all parties?

Are the dispute management practitioners committed to a fair, transparent and accountable process?

  • The community survey found that the majority of participants feel that mediations are fair and impartial very often (40%) often (25%) and sometimes (22%). Very few felt that mediations were hardly ever fair and impartial. This is an interesting result given many participants feel that there needs to be a wider representation of different family group amongst the mediators. The need to employ more family members to ensure impartiality maybe more about managing expectations and perceptions of procedural fairness, as much as improving any real shortcomings of the Project.

Is there a complaint process?

  • Investigation of the complaints process was not in scope of this project. The community survey identified that there were some family/clan groups who had complaints with the MIRJ and were not using the MIRJ. There is no client satisfaction or ongoing monitoring of client perceptions to assist MIRJ with improving the service.

Is there a code of conduct?

  • The mediator training has been raised previously as an area for improvement. The knowledge of and dissemination of essentially a code of conduct in line with the Elders rules would help reinforce to clients levels of service provision/conduct they can expect from MIRJ.