Intercultural Dispute Resolution in Aboriginal Contexts

David Mardiros is a lawyer and anthropological consultant in Terrace,
British Columbia.

In recent years, alternative dispute resolution (ADR) has become an
attractive alternative to the expensive, cumbersome, and inflexible
processes of the criminal and civil justice system. In the criminal
justice context in particular, restorative justice initiatives (a
particular application of ADR stressing mediation, healing, and
reconciliation) have become increasingly applied to offences involving
Aboriginal accused and Aboriginal communities. This volume examines the
use of ADR in a wide variety of contexts involving Aboriginal peoples in
Canada, the United States, and New Zealand.

As the contributors demonstrate, the “alternative” in ADR can take
a wide variety of forms, ranging from Aboriginal court systems operating
in parallel with the dominant legal system to specialized tribunals set
up to resolve disputes involving Aboriginal and non-Aboriginal parties.
At the conclusion of the book’s various sections (Theoretical
Perspectives, International Contexts, Canadian Contexts, and Issues of
Design and Implementation), there is a useful commentary summarizing and
contrasting the perspectives of the individual contributors. One of the
most exciting parts of the initiatives that are described, as Julie
Macfarlane points out in her commentary “When Cultures Collide,” is
the very real possibility of cultural convergence—the development of a
new model of conflict resolution as a result of different traditions
working together toward a common aim.

This thought-provoking work should be read by everyone interested in
alternatives to our current methods of conflict resolution. Although its
potential to give greater voice to Aboriginal interests is acknowledged,
ADR is not presented as a panacea: the book does not gloss over the
problems that have arisen with some applications of this approach. Nigel
Banks, in his analysis of the arbitration provisions written into three
northern land claims agreements, is critical of the complexity of the
dispute resolution provisions that have resulted. As more than one
commentator demonstrates in this book, inequality of bargaining power in
the design and implementation of the ADR systems described results in
inequitable outcomes in many cases. To succeed, an effective ADR model
must be based on mutual respect and a true commitment to achieving
positive results for all participants.