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, 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.
- 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.
|Best practice element||Alignment of MIRJ||Comment|
The principle of Indigenous community-driven development - Indigenous people want to control their futures.
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.
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
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;
- 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.
|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?
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?
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?
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?
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?
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 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?
Does the pre-mediation process build relationships of trust between the parties and practitioners?
Are the people who conduct intake and pre-mediation trained in preparation techniques which are complementary to dispute management?
Are the ‘right’ parties identified who have authority to settle the dispute and who can make the agreed outcome ‘stick’?
Are dispute resolution processes entered into voluntarily by the parties?
Are local people supported to take responsibility for fixing their own problems by initiating dispute management processes themselves?
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?
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.
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?
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.
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.
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?
Does the dispute management service offer ‘safe’ and non-violent places to air grievances and express strong feelings?
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?
Do the practitioners broker an appropriate procedural agreement about whether the process should be confidential or ‘witnessed’?
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?
Are agreements written or recorded?
Are agreements monitored?
Are agreements reviewed?
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?
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?
Do they have local knowledge?
Do they have the skills to quickly understand a range of other contextual information (legislation, referral pathways, and often complex technical information)?
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?
Is there a complaint process?
Is there a code of conduct?