On Wednesday morning, I attended a breakfast seminar on mediation and alternative dispute resolution in the Maori Land Court and Waitangi Tribunal, delivered by Judge Caren Fox, one of the judges of the Maori Land Court.I should explain for international readers, that in New Zealand the indigenous peoples, the Maori, have a central constitutional role because of the way in which New Zealand was settled. In 1840 the British government negotiated a treaty, the Treaty of Waitangi, with representatives of the leading Maori tribes (Iwi), which establishes a partnership between the Maori and European settlers. The Maori Land Court has jurisdiction to deal with land owned by the indigenous people and the Tribunal is a statutory body set up to deal with claims made by Maori about breaches of the Treaty. The significance of this is that both the court and tribunal do not approach legal decision-making using the British legal system otherwise used in New Zealand. There is a well-established body of law which relies heavily on Maori custom (tikanga). Parties who appear in the court and the tribunal do not often have lawyers acting for them, and the approach to dispute resolution can be very different from what we may expect for a European legal system.
The use of alternative dispute resolution in courts and tribunals has been a tremendous change throughout the world. However, we should be aware that the vast majority of academic and legal writing is based on English common law and the North American variations to common law. Virtually all the literature is based on European norms and culture and a significant amount of mediation is centred on such European cultural norms.
The seminar presented by Judge Fox was therefore a timely reminder that we must approach all dispute resolution with people from different cultures without making assumptions based on our cultural background. She discussed some of these issues including the concept of mana, and the effect on the ability to achieve a result at mediation. The sort of compromises which we readily accept at a European mediation cannot be achieved in a Maori context, because this would often result in a loss of mana and lead to a decision not acceptable to the members of the group involved in the mediation. The Maori cultural norm has a collective approach to problem-solving, and problems must be properly discussed with the wider family (whanau) sub tribe (hapu) and tribe (iwi), for any solution to have any credibility. The conventional model of mediation is often structured around a particular time to be taken for the mediation. The need for consultation makes this model inappropriate in a Maori context, because the mediator would lose all credibility if he or she announced that time was up, which would be regarded as extremely rude and offensive. The mediator must also build up a level of trust with the parties to a level well beyond what is needed for a European mediation. In a European context for something like a family mediation, the mediator may never have met the parties before and only deal with them at the mediation. In a Maori mediation the mediator would have no credibility unless he or she had built up a level of trust and respect, over a period of time. In addition, the mediator would need to have strong language skills, or a translator, so that the negotiations and position taking could be understood.
Although this seminar was in the context of a New Zealand indigenous approach to dispute resolution, it reminds us that we cannot accept that our culture is necessarily the appropriate lens to view the problem. As a dispute resolution practitioner, I must be aware that the parties will have different ideas and approaches, which are not right or wrong but just different. Awareness of these issues is critical for ICANN, with the goal of one Internet.