Indigenous practices can bolster ADR

Indigenous practices can help resolve family disputes outside of the court system and need to be considered during high-conflict disputes, such as those involving land claims or natural resources, say lawyers and mediators that work with Indigenous communities.

Indigenous practices can bolster ADR
John Brown says the goal of circles in which he participates is to find a solution to child welfare disputes that is in the best interests of the children.

Indigenous practices can help resolve family disputes outside of the court system and need to be considered during high-conflict disputes, such as those involving land claims or natural resources, say lawyers and mediators that work with Indigenous communities.

As a partner at McCarthy Tétrault LLP in Toronto, John Brown’s practice focuses on commercial disputes. He also does volunteer work as a member of the Giiwedin Anang Council, an alternative dispute resolution program for families involved with the child welfare system. Aboriginal Legal Services of Toronto operates the program, which is funded by the Ministry of Children and Youth Services.

“The idea is to return the power to the actual parties whose interests are at stake; for example, the mother and father who are trying to settle a custody issue,” says Brown, who is a member of the Stó:lō West Coast Salish First Nation in British Columbia.

During the sessions, all the affected parties sit in a circle, he says. This could include biological, adoptive or foster parents and children’s aid societies and their respective lawyers. A facilitator guides the discussion, and people can only speak when they’re holding the designated talking stick, says Brown.

The goal of the circles is to find a solution to child welfare disputes that is in the best interests of the children, says Brown.

“Once you return the power to the people whose interests are at stake, then they can work toward trying to reach an agreement or a consensus on how to resolve any disputes or disagreements,” he says.

Children may be involved if it’s appropriate. Elders and community members are also there to give cultural understanding and bring their personal and professional expertise to the situation, he says.

Indigenous mediation often doesn’t include having parties in separate rooms with a mediator moving between them, often called caucusing, says Joyce Tekahnawiiaks King, director of the Mohawk Council of Akwesasne justice department. The council has developed its own court and laws, a system King says is “comparable to the [legal system in] Canada.”

“[Caucusing] doesn’t build trust,” says King, a trained mediator and former justice of the peace. Mediators are trained community members who understand the local culture, she says. Mediation is used for a variety of disputes, including those involving custody and contracts.

Most community members prefer to resolve conflicts within the council’s court system, says King.

The court uses Ontario laws if an issue arises that is not covered by its own laws.

Alternative dispute resolution can be used to keep cases involving Indigenous communities from reaching the courts, says Alicia Kuin, a mediator with YorkStreet Dispute Resolution Group Inc. in Toronto, who has mediated several disputes involving Indigenous communities throughout the province.

“When we’re talking about land disputes or environmental disputes [or] resource disputes, I think mediation or dispute resolution is absolutely the approach to take,” says Kuin.

“When you go to the courts, you walk out with a win-lose scenario, and you never know which way that is going to go. I think dispute resolution provides a much better avenue for having much more holistic dialogue that is future orientated, education orientated and growth orientated.”

Kuin says the approach means “you don’t have one party walking away that is considered to be on the losing end of the spectrum.

“Dispute resolution provides the opportunity for there to be benefits and growth on both sides,” she says.

Not all cases can be mediated, though, she says. Sometimes, especially with cases involving Indigenous rights, it can be necessary to go to court.

“[Court action] often garners a lot of attention and can set precedent for future cases and future mediation processes,” she says.

Properly consulting with communities before a project begins can also be a form of dispute resolution, she says.

Kuin, along with John Beaucage, a former grand council chief of the First Nations of the Anishinabek Nation in Ontario, has worked in what she calls “long-standing, multi-party protracted conflict(s) [where] the parties are quite entrenched in their position.”

They’ve developed their own dispute resolution method called Anishnabe N’oon Da Gaaziiwin, which is Ojibwe for “Listening to the Voice of the People.” This incorporates Indigenous creation stories, smudging, a closing pipe ceremony and other elements of Indigenous culture. It can be adapted to suit the needs of each community, she says, which is especially important when a dispute involves different Indigenous groups. Each Indigenous group may have its own resolution practices or community interests, she says.

A lot of the mediation work happens in circles, says Kuin. Communities have different protocols about which direction to move a talking stick around the circle, she says.

Kuin, who has a background settling high-conflict, international disputes, says all good mediators need to consider the cultural backgrounds of disputing parties.

With Indigenous communities, this includes remembering the negative parts of Indigenous history in Canada, she says.

“I think if you want to be an active participant in reconciliation, then you need to take the initiative to learn the truth first,” she says.

Brown says he will tell the circle members if he thinks a proposed solution won’t work legally, but he doesn’t tell anyone what to do, he says.

“[The circle] is a ceremony in several ways — and they’re considered sacred,” Brown says. “Whatever’s said in the circle remains in the circle. That’s very important.

“If you know when you’re going into the circle that you can speak truthfully and honestly from the heart and it’s not going to come back and bite you outside the circle, it really helps to let the people around you know what’s really affecting you or what’s impacting you about the circumstances you find yourself in,” he says.

The talking stick empowers the person holding it to be truthful and encourages those around to listen thoughtfully and respectfully, without interrupting, says Brown.

In many situations, families that use the circles haven’t started a legal process yet, he says. Brown says court-ordered mediation is well intentioned, but it can often still have an adversarial atmosphere because parties have already outlined their cases to the mediator, summarizing why they are right and the other person is wrong, he says.

A good mediator remains neutral, but in standard mediation, they still have a position of power, says Brown.

“In the circle, the power remains with all the people in the circle,” he says.

While the council can bring resolution to child custody disputes, this method does not work with all situations, he says.

“With any form of mediation, you have to pick which subjects you can actually deal with,” says Brown. “You can’t deal with a murder case, but [this method] can deal with a child welfare case, because the parties are mutually interested in the best interests of the child. That’s the focus. That’s one of the reasons that makes this work.”

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