Written by - Sana Quayyum
Designation - Intern, MediateGuru
Nowadays, it is not uncommon to discuss Alternate methods of Dispute Resolution. The courts have been primarily and preferably used as the cardinal mechanism to resolve disputes. However, with increasing globalisation when we perceive things at a larger scale, public dissatisfaction with an adversarial system, government recognition of a range of expert decision makers, and increased awareness of the importance of acknowledging cultural differences among disputing parties are among the factors that have encouraged the rise of alternative dispute resolution processes.
When we concern ourselves with the concept of Alternate Dispute Resolution or Alternate Methods of Dispute Settlement we are siphoning our Dispute Resolution Systems to avail varied approach to attain its goal, i.e. to satisfy each party having interest in the dispute in hand subjecting to the rule of utilitarianism. The most fundamental object of developing Alternative methods for settlement of disputes is to avoid the strain that may detriment the relationships between the parties and to amicably arrive to a solution that would rather aid to prosper such association.
There are various approaches that may be advantageous to achieve dispute resolution when we pertain to indigenous form of dispute resolutions. These are as follows:
One approach involves Western-based paradigms such as negotiation, conciliation, arbitration and mediation. These methods have gained prominence in the recent times with Courts being too time consuming and having to deal with great technicalities.
A second approach applies Indigenous paradigms to resolve disputes according to the culture and custom of the Indigenous parties involved. It is no concealed fact that diversity at national or international level is immense and so are their tendencies to favour such diversification and being sensitive towards their conventions and values. Due to the diversity and distinctiveness of Aboriginal peoples across the world, these methods of dispute resolution are multifaceted; they reflect the Indigenous teachings from which they come and subsequently differ across Aboriginal nations.
A third approach focuses on combining the two paradigms, so that aspects of Western-based paradigms are synthesized with traditional Indigenous paradigms. The importance of “neutral third parties” and “impartiality” are upheld as universal ‘must-haves’ in relation to dispute settlement in Western models; however, within Aboriginal (Indigenous) worldviews these traits contradict several important traditional teachings. Simply training Indigenous people as mediators may not be sufficient to counter the problems of “cultural bias” and the problem of “neutral and impartial” third parties as there are many distinct differences between Indigenous groups and communities.
Distinguishing between Western mediator ‘must-haves’ such as ‘neutrality’, ‘impartiality’ and ‘objectivity’ and Indigenous ones of ‘personal involvement’, ‘first-hand knowledge’, ‘tied to community and culture’ are important. Firstly, simply imposing Western values upon an Indigenous dispute will bias both process and outcome. And secondly, claiming Western norms and values as universal undermines the potential and realization of other equally important ways of understanding the world.
Our traditional laws are not dead. They might be bruised and battered but are alive within the hearts and minds of the Indigenous peoples across their lands. Our elders hold these laws within their hearts for us. We only need to reach out and understand these laws and principles. They do not need the sanction of the non-Indigenous world to be implemented and followed through. These laws are given to us by the Creator to use. We are going to begin by using them as they were intended. It is our obligation to the coming generation to appreciate them.
The under-representation of Aboriginal people in positions of authority within the justice system, and the under-utilization of either formal or ADR processes by Aboriginal people to resolve disputes all indicate that something needed to be done to increase Aboriginal people’s involvement in resolving disputes. A conceptual framework may be helpful in understanding the difference between Indigenous paradigms of dispute resolution and the of western or indigenization ADR models. A polite assimilation of the two or convergence or even having a mutual influence on one another may result in the recognition of Indigenous methods of dispute resolution.