Mediation in Australia - Native Title Mediation

Native Title Mediation

Native title in Australia has frequently given rise to mediation. If a mediator lacks cultural literacy across different cultures or awareness of parties having difficulties during the mediation due to differences in culture, then the mediator’s lack of understanding or misunderstanding could cause a breakdown in the negotiation-process. Cultural awareness ensures that mediators can adapt their skills and techniques to ensure that they can maintain their standard of care throughout the mediation process.

Native-title mediation differs from regular mediation in that, rather than the parties referring a dispute to mediation, the Federal Court of Australia can also determine whether the National Native Title Tribunal should mediate a matter. Other distinctive features occur: often native-title mediations can involve up to one hundred participants; lawyers play a minimal role; and rather than making technical legal points the speakers for the Aboriginal and Torres Strait Islands people often talk about their family genealogies, traditions, dreaming and stories to support their claims.

The National Native Title Tribunal does not decide whether native title exists over land in question: rather it has the role of mediating contested applications and applications for compensation which originated in the Federal Court of Australia. More importantly, the parties must mandatorily attend a native-title mediation unless the court has granted leave. However, the parties can apply for the termination of the mediation at any time later than three months after the commencement of the mediation.

Due to the large number of applicants in native-title applications, the process of mediation differs somewhat from that of other mediations. The National Native Title Tribunal takes a more "outcome-focused" approach. In the course of a number of pre-mediation meetings the mediator obtains information from the parties in relation to the claim itself and tries to obtain information from the parties regarding their interests in the claim and any other matters which may have relevance to the mediation.