I teach Clinical Legal Education, Civil Procedure, and Alternative Dispute Resolution at Adelaide Law School. Aboriginal communication preferences provide a ready contrast to the orthodox client interviewing practices that are used in the Australian legal system. This year I partnered with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Exploring the idea of knowledge systems made me appreciate the influence that my Euro-centric upbringing, education and legal training has on teaching and mediation practice. This discussion is the start of more detailed work with the Mobile Language Team that seeks to make law students and lawyers aware of their own and others’ cultural preferences .
In this discussion I often use the term “Aboriginal” as it is preferred in my state of SA. I mean no disrespect to others who prefer the terms Indigenous or First Nations.
Aboriginal and European knowledge systems
Indigenous knowledge describes the accumulation of knowledge and philosophy by societies over millennia. The term applies to pre-industrial societies and is typified by communities that have a predominantly oral tradition, exist synergistically with land and environment, and often live in communal or extended family groups. Guidance for life is often in the form of complex rules about relationships, land use, and behavior, and these rules are illustrated through place, landscape, stories, and spirituality. Indigenous knowledge systems often see the world as a cyclical phenomenon, with environment, people, experiences, stories laws and knowledge existing on a holistic plane, rather than as a linear movement from ‘then’ to ‘now’. Context, circumstance, and the perspective of the actor/s, means that knowledge is perpetually adaptive within broad frameworks. In contrast, Western European knowledge structures typically take a linear approach, with the past often representing “primitiveness” and the present seen as the apex of achievement. Proof – whether of historical fact, scientific hypothesis, or psychological condition, is critical, and rests on the written and evidentiary record. Colonial expansion of Europeans over the past 400 years has resulted in the hierarchical individualistic commercial and scientific values that underpin much Western culture being indelibly stamped on colonized nations and ways of life.
After centuries of being ignored, recent decades have seen gradual national and international recognition that Indigenous knowledge is rich, relevant and comprehensive, with enormous value to modern day science and land management (Pascoe 2018, 12-13; Nakata 2007, p.9).
Anglo-Australian legal culture
Aboriginal and Anglo-European world views differ as much in law and dispute resolution as in other areas. Anglo European law rests on the foundational presumption that individual rights always exist in tension with the interests of the state and the community. The right of the individual to self-determination in their own personal, commercial, economic, religious, lifestyle and other interests must be actively asserted. This reflects the cultural value attributed to commercial success and individual achievement, described by Lander as a ‘predatory’ culture that infuses both legal and governmental systems (Lander 2002, p.245).
Aboriginal cultural values are differently framed. Whilst individuals are valued there are expectations of humility, collectivism, knowledge sharing, responsibility to nature and the environment, and the interconnectedness of all aspects of life and environment . A simple comparison might liken Anglo-centrist legal philosophy to the primacy of the individual and Aboriginal legal philosophy to the primacy of the community in sync with the environment. Behrendt identifies key differences describing Anglo-Australian culture as individual, hierarchical, and competitive; and Aboriginal culture as communal, egalitarian, and cooperative (Behrendt 2008, p. 93).
In the traditional Anglo-Australian context, laws are rigid and inflexible. Rights are determined by adversarial process in which parties present evidence of facts to a single decision maker. This decision maker evaluates the evidence to decide if alleged facts are proven, and then determines how the law will apply to the proven facts. The existence of proven facts, and the application of the law, are the only relevant considerations. Loosely described as a ‘win lose’ competition, there is seldom a middle ground, and no scope for context, emotion, third party interests, or diverse non legal outcomes.
Larissa Behrendt provides a summary of the most visible differences between legal cultures:
|Traditional Aboriginal dispute resolution
||Contemporary Anglo Australian litigation
Emotional informal response
Disputants may live together
Jury of elders
Experience age and wisdom required in an arbitrator
No rules of evidence
Procedure evolves with dispute
Process occurs with family or clan present
Disputants and family address arbitrators
Time not an issue
Informal “circle” culture
Settlement discussed with disputants
Informal communal appeal
Controlled formal response
Disputants often strangers
Occasionally jury of peers
Formal legal training, experience, and reputation required for appointment as arbitrator
Fixed rules of evidence
Process occurs with strangers, or no observers, present
Legal representatives address arbitrator
Formal court culture
Formal appeal process
(Behrendt 2008, p. 93)
Mediation is an important alternative to Anglo Australian court process. Looking at Behrendt’s table (above) it is very clear that mediation comes between the two sides of the table, and aligns with Aboriginal approaches. Even so, mediation may continue to unwittingly apply Euro centric norms. In the following discussion I examine four of these perceptions: timing, mediator selection, communication preferences, and participants.
Court process in Australia is tightly controlled. Even mediation, the least court-like approach, follows an orthodox series of steps, and often occurs in a single meeting that might last a few hours, or a few days. Time and efficiency in Western society, including the legal system, is seen as a critical element of justice delivery.
Traditional Aboriginal dispute resolution processes are not linked to time frames. The process is entirely flexible, and may be decided by the parties, not the mediator. Experienced Aboriginal mediators trained in orthodox mediation, but attuned to the circular approach to time that informs Aboriginal culture, suggest that the choice and sequence of process should be given to the participants, not the mediator. They also suggest more flexibility in the phases of mediation, rather than an expectation that it will all occur in a discreet time frame (Kelly 2008 p. 224). This flexibility in process may be more useful to parties who need time and space to consider new ideas and rethink their issues and options.
The use of independent neutral third parties to mediate or adjudicate disputes is a cornerstone of Anglo European dispute resolution philosophy. In Aboriginal culture this is not so often the case. The cultural respect accorded to elders in communities means that they are presumed to be suited to working with the parties to resolve the matter, even if they are closely connected to the parties and familiar with the context (Grose 1995 p. 334). This practice is noted in other pre industrialized societies around the world where social hierarchy is an important element in dispute resolution (Merry 1982, pp. 30-31). Aboriginal practice recognizes that deep cultural respect for elders will influence compliance with outcomes and result in community satisfaction. It also means that the dispute is controlled within community (Ciftci and Howard-Wagner 2012 p. 84).
There are cultural differences in communication style and preference (Ciftci & Howard-Wagner, p. 82). Direct linear questioning designed to elicit facts and timelines typifies Anglo-Australian legal practice, and court process (Eades 2012, p. 481). Whilst much less formal, mediators often rely on open ended questioning to elicit responses from parties with a view to establishing a story that is coherent in terms of Western narrative discourse. Aboriginal discourse avoids direct questioning, is more responsive to less direct ways of eliciting information, and may have rules about who can speak for or about different people or issues. (Eades 2012, pp. 479-492).
Mediation in Anglo-Australian disputes reflects the Western presumption that privacy is valued above all. Mediation is private and confidential, limited to the mediator and the disputing parties. In Aboriginal dispute resolution the individual is seen as part of a larger social group. All members of that group may be involved in resolving the dispute, reflecting the importance of relatedness and consensus building (Sutton 2010, p.5). Whilst this is the practice in many land title claims where there are multiple people interested in a claim, it is not a typical feature of mediation process in the normal course.
Learning from Aboriginal culture
One of the challenges in learning from Aboriginal practices is that many of the ideas in Aboriginal culture flow from the importance of relatedness community and environment, from hierarchical respect for elders, and from a non-competitive world view. Euro-centric communities have ceased to share the same extent or depth of relatedness between dozens if not hundreds of kin, and the competitive perception that there is a right and a wrong outcome to any disagreement dissuades collaboration.
In the multicultural society of Australia today, there are numerous cultures, some with strong family and community connectedness. Many close-knit African communities value community adhesion above individual rights. Many Asian cultures traditionally prioritize respect, community harmony, and protocols for indirect communication over confrontational direct approaches (Sourdin 2020, p 642). Individuals of any culture who don’t happen to be educated in the written, fact based, chronological approach to conveying stories favored by Western educated professionals are not attuned typical Western discourse structures. Many people need time to reflect, to consult with others, and to re-evaluate their position as they move forward. People must expose their lives to disinterested strangers, rather than people whom they trust and respect.
Whilst court processes are rigid and slow to change, ADR options like mediation are flexible and adaptive. However they may unwittingly be informed by traditional Anglo centric perspectives. There is no one way of approaching dispute resolution, and mediators are nothing if not imaginative and adaptive. Aboriginal culture offers valuable insight into ways that can support process and theory in this dynamic context.