Alternative ways to resolve a conflict


 

Uses of mediation

A core problem in the dispute resolutionmechanisms to address conflicts as they
process is the determination of what thearise.
dispute is actually about. Through theNative Title Mediation
process of mediation participants canIn response to the Mabo decision by the
agree to the scope of the dispute orHigh Court of Australia the Australian
issues to be resolved. Examples of thisGovernment sought to alleviate the
use of mediation in the Australianconcerns of a wide section of the
jurisdiction include narrowing the scopepopulation and industry on the decisions
of legal pleadings and its use inimplications on land tenure and use by
industrial and environmental disputes.enacting the Native Title Act 1993
Definition of the nature of a dispute(Cth). A cornerstone of the act is the
can often clarify the process ofuse of mediation as a mechanism to
determining what method is best suiteddetermine future native title rights
to its resolution.within Australia.
One of the primary uses of mediation isAlthough not barring litigation the Act
for parties using the mediation processseeks to promote mediation through a
to define the issues, develop optionsprocess incorporating the Federal Court
and achieve a mutually agreedand the National Native Title Tribunal
resolution.(NNTT). This is seen as having a better
In Australia, mediation has beenlong tern success by providing flexible
extensively incorporated into theand practical solutions to the needs of
dispute settlement process of family lawthe various stakeholders.
and the latest round of reformsThe extensive use of mediation in the
concerning industrial relations underresolution of native title matters does
the Work Choices amendments to thenot stop matters being referred to the
Workplace Relations Act.courts for resolution, nor is mediation
Where there is the prospect of anprecluded from occurring whilst legal
ongoing disputation between partieschallenges are being pursued. A recent
brought on by irreconcilable differencescase where Native Title rights were
stemming from such things as a clash offound exist over a large portion of the
religious or cultural beliefs mediationCity of Perth has seen the simultaneous
can be used as a mechanism to fosteruse of mediation and formal legal
communication and interaction.appeals processes.
Mediation is not only used as a tool forA key feature of Native Title mediation
dispute resolution but also as a meansis in the use of Indigenous Land Use
of dispute prevention. Mediation can beAgreements (ILUA’s). These binding
used to facilitate the process ofagreements are negotiated between native
contract negotiation by thetitle claimant groups and others such as
identification of mutual interests andpastoralists, miners and local
the promotion of effective communicationgovernments and cover aspects of the use
between the two parties. Examples ofof the land and any future act such as
this use of mediation can be seen inthe granting of mining leases.
recent enterprise bargainingSome of the features of native title
negotiations within Australia.mediation which distinguish it from
Mediation can also be used byother forms include the likelihood of
governments to inform and seek inputlengthy negotiation timeframes, the
from stakeholders in formulation or factnumber of parties ranging on occasion
seeking aspects of policy making.into the hundreds and that some aspects
Mediation in wider aspect can also beof the negotiations are constrained by
used in to prevent conflict or developstatutory and case law prescriptions.



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