Mediation in Australia

Mediation in the multi-cultural society of Australia, as a form of dispute resolution, may involve understanding the role that culture plays. Cultural differences often exist due to race and ethnicity, but can also arise from religion, gender, age, sexual orientation and disabilities. Major concerns in cross-cultural dispute-resolution include perceived power-imbalance — often escalated by communication-difficulties, misconceptions, negotiation-behaviour, face-saving and the publicity surrounding the dispute.

Native title in Australia has frequently given rise to mediation. If a mediator lacks cultural literacy across different cultures or awareness of parties having difficulties during the mediation due to differences in culture, then the mediator’s lack of understanding or misunderstanding could cause a breakdown in the negotiation-process. Cultural awareness ensures that mediators can adapt their skills and techniques to ensure that they can maintain their standard of care throughout the mediation process.

Native-title mediation differs from regular mediation in that, rather than the parties referring a dispute to mediation, the Federal Court of Australia can also determine whether the National Native Title Tribunal should mediate a matter. Other distinctive features occur: often native-title mediations can involve up to one hundred participants; lawyers play a minimal role; and rather than making technical legal points the speakers for the Aboriginal and Torres Strait Islands people often talk about their family genealogies, traditions, dreaming and stories to support their claims.

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