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Kelly, Loretta --- "Recent Developments in NSW in the Area of Aboriginal Family Mediation" [2002] IndigLawB 14; (2002) 5(15) Indigenous Law Bulletin 14

Recent Developments in NSW in Aboriginal Family Mediation

by Loretta Kelly[1]

There are two new initiatives in NSW that attempt to provide a culturally appropriate family mediation service to Aboriginal communities. This article compares and contrasts these services and suggest improvements to service provision.

Aboriginal and Torres Strait Islander Family Mediation Program (Legal Aid NSW)

In 2001, Legal Aid NSW received a grant for $518,000 from the Commonwealth to operate a pilot Indigenous Family Mediation program.[2] This program will be separate to the Family Law Conferencing Program that is available generally in NSW.

The money is primarily being spent on two pilot programs in Dubbo and south-west Sydney. The idea of the pilot is that Aboriginal workers will do the initial pre-mediation assessment of Aboriginal clients (‘the intake’), and trained Aboriginal community members will undertake the mediations.

There are some fundamental flaws in the program. Firstly, the program is co-ordinated from the Family Law Conferencing Office in Sydney by a non-Aboriginal person. This clearly undermines the need for Aboriginal self-management of services to Aboriginal clients.

Secondly, the model of mediation adopted by Family Law Conferencing involves different people doing the intake and the mediation. I believe that a better model for Aboriginal clients involves the same person doing both the intake and the mediation. This is because Aboriginal people can be very distrusting of others (even other Aboriginal people) in relation to their family disputes. Once rapport is established by the mediator doing an intake, the mediator’s continued involvement is, in my experience, often crucial to Aboriginal parties not only ‘turning up’ for the mediation, but in trusting the process and participating fully.

Thirdly, the cultural appropriateness of the training, which took place in February and March this year, is questionable. The Family Law Conferencing Program has a trainer who is used for training the people who facilitate the Conferences (‘Conferencing Chairpersons’). I have personally attended this training and believe the trainer to be of a high standard in relation to mainstream mediation. However, she is not Aboriginal. Despite her having undertaken mediations involving Aboriginal people, a non-Aboriginal person could never achieve the same level of understanding of Aboriginal family dynamics as an Aboriginal trainer. Attempts are being made to ‘Indigenise’ the training by having Aboriginal people ‘assist’. However, the non-Aboriginal trainer will be presenting the core training in mediation skills and the process of mediation. It is impossible for a program to be committed to providing a culturally appropriate service when the skills and the process are being taught from a non-Indigenous perspective. The Indigenous curriculum must be integral to the model and not simply an appendix to the mainstream training.

Finally, major overhauls are required by Legal Aid in the delivery of their Family Law Conferencing Program to Aboriginal communities. Currently, whilst the pilots are taking place, it is my understanding that all other Aboriginal communities across NSW will be serviced through this mainstream program. While Legal Aid waits for the pilot areas to be established and evaluated prior to implementing changes at a state level, urgent reform to the intake service of the mainstream program needs to be implemented.

The Aboriginality of all parties involved in a Conference must be determined and an Aboriginal Conference Chairperson must be appointed (except where the parties, for whatever reason, may not want an Aboriginal Chairperson). In my research in Aboriginal communities on the north coast of NSW, it was generally felt that Aboriginal people needed to be the mediators in disputes involving Aboriginal people.

Currently the Family Law Conferencing organisers do not ask whether a client is Aboriginal, and purportedly rely solely on the information provided by the local Legal Aid solicitor. This is problematic in that the Legal Aid solicitor may not include this information. There is also a question as to whether the organisers take Aboriginality into account when appointing the Conferencing Chairperson

I am personally aware of mediations convened by non-Aboriginal Chairpersons, where one or both of the parties were Aboriginal. I know of another situation where both parties were Aboriginal and the Conference was convened over the telephone by a non-Aboriginal Chairperson who was in Sydney and the Aboriginal clients were on the north coast of NSW. This situation is ludicrous, given that at the time there was at least one Aboriginal conference chairperson residing in the region.[3] Having to attempt communication with a former partner with whom you are in conflict can be intimidating as it is, but to have to do so on the phone with a non-Aboriginal person based in Sydney is poor practice.

At the Conferencing Chairperson training course conducted in Coffs Harbour in 2001, the Family Law Conferencing Coordinator stated that it was their policy never to permit two male Chairpersons to convene a Conference involving a male and a female party. In response, I raised the question as to why, when both parties are Aboriginal, it is quite acceptable to Legal Aid to have two non-Aboriginal Chairpersons convene the Conference? The response from the Coordinator was unclear, but to the effect that such a scenario was ‘different’.

Finally, culturally attractive and creative visual information needs to be designed and distributed across NSW, including a free-call number and a statement regarding Legal Aid’s commitment to providing the best service available for Aboriginal clients.

Aboriginal Family Wellbeing Facilitation Service

This service is an Indigenous Parenting and Family Wellbeing Initiative funded by the Commonwealth Department of Family and Community Services for approximately $350,000 over a three year period. Launched in February this year, the service covers the region on the north coast of NSW from Macksville to Grafton (which includes more than 10 distinct Aboriginal communities). It is a partnership between Interrelate—a mainstream family counselling and mediation—and the lead agency Yarrawarra Aboriginal Corporation.

This Service offers several improvements on the Legal Aid pilot. It is staffed by a coordinator and a family support worker, and managed by an Advisory Committee made up of 10 Aboriginal people from the various surrounding communities. The Advisory Committee has determined that the training of Aboriginal community members must be undertaken by an Aboriginal trainer. This is essential to ensuring culturally appropriate and culturally sensitive training.

The dispute resolution models used by the service are flexible. In western terms, conciliation and arbitration will be offered and these processes will be facilitated by Aboriginal Elders, and co-facilitated by other Aboriginal facilitators where required. Family mediation is also offered and there are currently six trained and accredited (by Interrelate) Aboriginal mediators in the service region. At least 14 more Aboriginal community members will be trained in culturally appropriate dispute resolution in the next few months. These community members will be referred to as ‘facilitators’ (for want of a better term).

Where non-Aboriginal mediators are used, these mediators must have undergone cultural awareness training and must have significant experience in dealing with Aboriginal people, families and communities.

Conclusion

Mediation is a rapidly evolving dispute resolution process. It is therefore important to criticise and evaluate mediation services. I offer my views as constructive feedback in order to improve mediation schemes for the benefit of the community which they are supposed to serve.

Loretta Kelly is Gumbaynggirr and Dunggatti. She is a lecturer in the School of Law and Justice at Southern Cross University, and is a mediator with Interrelate and Community Justice Centres NSW.


[1] A companion article by Loretta Kelly on the principles of mediation in the context of contemporary Aboriginal culture was published in the last issue of the Indigenous Law Bulletin. L Kelly, ‘Mediation in Aboriginal communities: familiar dilemmas, fresh developments’ (2002) 5(14) ILB 7.

[2]Australian Family Mediation Association (August 2001) 6 The Family Mediator 9.

[3] I was the conference chairperson available at that time. Since then I have resigned from the program as I felt that it was a waste of time.


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