| A core problem in the dispute resolution process is the | | | | arise. |
| determination of what the dispute is actually about. | | | | Native Title Mediation |
| Through the process of mediation participants can | | | | In response to the Mabo decision by the High Court of |
| agree to the scope of the dispute or issues to be | | | | Australia the Australian Government sought to alleviate |
| resolved. Examples of this use of mediation in the | | | | the concerns of a wide section of the population and |
| Australian jurisdiction include narrowing the scope of | | | | industry on the decisions implications on land tenure |
| legal pleadings and its use in industrial and | | | | and use by enacting the Native Title Act 1993 (Cth). A |
| environmental disputes. | | | | cornerstone of the act is the use of mediation as a |
| Definition of the nature of a dispute can often clarify | | | | mechanism to determine future native title rights within |
| the process of determining what method is best suited | | | | Australia. |
| to its resolution. | | | | Although not barring litigation the Act seeks to promote |
| One of the primary uses of mediation is for parties | | | | mediation through a process incorporating the Federal |
| using the mediation process to define the issues, | | | | Court and the National Native Title Tribunal (NNTT). |
| develop options and achieve a mutually agreed | | | | This is seen as having a better long tern success by |
| resolution. | | | | providing flexible and practical solutions to the needs of |
| In Australia, mediation has been extensively | | | | the various stakeholders. |
| incorporated into the dispute settlement process of | | | | The extensive use of mediation in the resolution of |
| family law and the latest round of reforms concerning | | | | native title matters does not stop matters being |
| industrial relations under the Work Choices | | | | referred to the courts for resolution, nor is mediation |
| amendments to the Workplace Relations Act. | | | | precluded from occurring whilst legal challenges are |
| Where there is the prospect of an ongoing disputation | | | | being pursued. A recent case where Native Title rights |
| between parties brought on by irreconcilable | | | | were found exist over a large portion of the City of |
| differences stemming from such things as a clash of | | | | Perth has seen the simultaneous use of mediation and |
| religious or cultural beliefs mediation can be used as a | | | | formal legal appeals processes. |
| mechanism to foster communication and interaction. | | | | A key feature of Native Title mediation is in the use of |
| Mediation is not only used as a tool for dispute | | | | Indigenous Land Use Agreements (ILUA’s). |
| resolution but also as a means of dispute prevention. | | | | These binding agreements are negotiated between |
| Mediation can be used to facilitate the process of | | | | native title claimant groups and others such as |
| contract negotiation by the identification of mutual | | | | pastoralists, miners and local governments and cover |
| interests and the promotion of effective | | | | aspects of the use of the land and any future act |
| communication between the two parties. Examples of | | | | such as the granting of mining leases. |
| this use of mediation can be seen in recent enterprise | | | | Some of the features of native title mediation which |
| bargaining negotiations within Australia. | | | | distinguish it from other forms include the likelihood of |
| Mediation can also be used by governments to inform | | | | lengthy negotiation timeframes, the number of parties |
| and seek input from stakeholders in formulation or fact | | | | ranging on occasion into the hundreds and that some |
| seeking aspects of policy making. Mediation in wider | | | | aspects of the negotiations are constrained by |
| aspect can also be used in to prevent conflict or | | | | statutory and case law prescriptions. |
| develop mechanisms to address conflicts as they | | | | |