What Is Indigenous Dispute Mediation?

Indigenous Dispute Mediation Involves the Use of Dispute Resolution Methods That Are Traditional to Indigenous Peoples Such As the Engaging of Talking Circles That Bring Victims and Wrongdoers Together For the Purpose of Discussing Perspectives Upon An Incident and Seeking Collective Healing.

Obtaining Mediation Services May Help Resolve Historic Conflicts and Heal Relations Involving Indigenous Peoples Concerns

Indigenous Inukshuk The Canadian indigenous community at-large has, and deserves, unique and historic ways for the resolving of disputes and conflicts.  For example, as a culturally traditional means of resolving conflict, native peoples may engage in healing circles wherein the indigenous community, including victims and wrongdoers, gather to address the misdeeds of a wrongdoer.  A talking stick or talking feather is passed around as a means of identifying whose turn it is to speak.  During the process, victims may express how the misdeeds affected the victims while allowing the wrongdoer with an opportunity to offer apology and reparations.  Additionally, the victims and the community may extend praises and appreciation to the wrongdoer with reminders of prior good deeds, rather than using punitive measures, as a means to encouragement a return to conduct that is positive and constructive to the overall community while also providing a healing benefit to both the victims as well as the wrongdoer.

Required Cultural Heritage Sensitivity

Dispute resolution involving indigenous peoples requires a heightened awareness and sensitivity to the unique and historic manner in which indigenous peoples address, and resolve, disputes.  Unlike the legal process system forcedly imposed upon indigenous peoples during the colonization of Canadian lands, indigenous dispute resolution seeks to return to, or integrate, the historic and cultural dispute resolution processes of indigenous peoples.

The mediating of indigenous disputes requires that a mediator be culturally sensitive, be knowledgeable, and be attuned, to the hierarchies within indigenous communities including the spiritual and social structure of each respective community.  An indigenous dispute mediator recognizes that, generally, hierarchies within indigenous communities arise inherently from respect for elders and other leaders rather from an imposition of punitive powers used for oppression or control.

Restorative Justice Mediation

The Canadian criminal justice system often incorporates restorative justice programs as a means to address violations of the Criminal Code of Canada, R.S.C. 1985, c. C-46, by an indigenous person.  Restorative justice programs are modelled after the cultural traditions of native peoples and involve bringing the victim of a crime and the wrongdoer together to discuss the crime with the help of a trained mediator.  The goal of the discussion is to develop an incident resolving arrangement between the victim and the wrongdoer.

Unlike the healing circle process mentioned above, restorative justice mediation, generally, involves only the victim, the wrongdoer, and a mediator.  The intent is to provide the victim and the wrongdoer with a safe space within which the victim may express how the conduct of the wrongdoer affected the victim, while also providing an opportunity for the wrongdoer to express apologies and discover how to make reparations for the harm caused to the victim.

An indigenous wrongdoer who participates genuinely within a restorative justice program may, for less serious crimes, receive a more lenient criminal justice process such as diversion from the criminal process, suspended sentencing, or less punitive sentencing.

Generally, the use of a restorative justice program for indigenous peoples arises from the encouragement provided by the Supreme Court of Canada via the precedent case of R. v. Gladue[1999] 1 S.C.R. 688, wherein the sentencing principles prescribed in section 718.2 of the Criminal Code were reviewed with the unique concerns of indigenous peoples in mind.  The unique concerns for review in criminal sentencing of an indigenous person are now known as the Gladue Principles.

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