Law Times

Page 10 September 3, 2018 • Law timeS www.lawtimesnews.com Not all cases can be mediated Indigenous practices can bolster ADR BY MEAGAN GILLMORE For Law Times I ndigenous practices can help resolve family disputes out- side of the court system and need to be considered during high-conf lict disputes, such as those involving land claims or natural resources, say lawyers and mediators that work with Indigenous communities. As a partner at McCarthy Tétrault LLP in Toronto, John Brown's practice focuses on commercial disputes. He also does volunteer work as a mem- ber of the Giiwedin Anang Council, an alternative dispute resolution program for families involved with the child welfare system. Aboriginal Legal Ser- vices of Toronto operates the program, which is funded by the Ministry of Children and Youth Services. "The idea is to return the power to the actual parties whose interests are at stake; for example, the mother and father who are trying to settle a cus- tody issue," says Brown, who is a member of the Stó:lō West Coast Salish First Nation in British Co- lumbia. During the sessions, all the affected parties sit in a circle, he says. This could include biologi- cal, adoptive or foster parents and children's aid societies and their respective lawyers. A fa- cilitator guides the discussion, and people can only speak when they're holding the designated talking stick, says Brown. The goal of the circles is to find a solution to child welfare disputes that is in the best inter- ests of the children, says Brown. "Once you return the power to the people whose interests are at stake, then they can work toward trying to reach an agree- ment or a consensus on how to resolve any disputes or disagree- ments," he says. Children may be involved if it's appropriate. Elders and com- munity members are also there to give cultural understanding and bring their personal and professional expertise to the sit- uation, he says. Indigenous mediation often doesn't include having parties in separate rooms with a media- tor moving between them, of- ten called caucusing, says Joyce Tekahnawiiaks King, director of the Mohawk Council of Ak- wesasne justice department. The council has developed its own court and laws, a system King says is "comparable to the [legal system in] Canada." "[Caucusing] doesn't build trust," says King, a trained me- diator and former justice of the peace. Mediators are trained community members who un- derstand the local culture, she says. Mediation is used for a va- riety of disputes, including those involving custody and contracts. Most community members prefer to resolve conf licts within the council's court system, says King. The court uses Ontario laws if an issue arises that is not cov- ered by its own laws. Alternative dispute resolu- tion can be used to keep cases involving Indigenous commu- nities from reaching the courts, says Alicia Kuin, a mediator with YorkStreet Dispute Resolu- tion Group Inc. in Toronto, who has mediated several disputes involving Indigenous commu- nities throughout the province. "When we're talking about land disputes or environmental disputes [or] resource disputes, I think mediation or dispute reso- lution is absolutely the approach to take," says Kuin. "When you go to the courts, you walk out with a win-lose scenario, and you never know which way that is going to go. I think dispute resolution pro- vides a much better avenue for having much more holistic dialogue that is future orien- tated, education orientated and growth orientated." Kuin says the approach means "you don't have one party walking away that is considered to be on the losing end of the spectrum. "Dispute resolution provides the opportunity for there to be benefits and growth on both sides," she says. Not all cases can be mediated, though, she says. Sometimes, es- pecially with cases involving In- digenous rights, it can be neces- sary to go to court. "[Court action] often garners a lot of attention and can set precedent for future cases and future mediation processes," she says. Properly consulting with communities before a project begins can also be a form of dis- pute resolution, she says. Kuin, along with John Beau- cage, a former grand council chief of the First Nations of the Anishinabek Nation in Ontario, has worked in what she calls "long-standing, multi-party protracted conf lict(s) [where] the parties are quite entrenched in their position." They've developed their own dispute resolution method called Anishnabe N'oon Da Gaaziiwin, which is Ojibwe for "Listening to the Voice of the People." This in- corporates Indigenous creation stories, smudging, a closing pipe ceremony and other elements of Indigenous culture. It can be adapted to suit the needs of each community, she says, which is especially important when a dispute involves different Indig- enous groups. Each Indigenous group may have its own resolu- tion practices or community in- terests, she says. A lot of the mediation work happens in circles, says Kuin. Communities have different protocols about which direction to move a talking stick around the circle, she says. Kuin, who has a background settling high-conf lict, interna- tional disputes, says all good mediators need to consider the cultural backgrounds of disput- FOCUS John Brown says the goal of circles in which he participates is to find a solution to child welfare disputes that is in the best interests of the children. When you go to the courts, you walk out with a win-lose scenario, and you never know which way that is going to go. Alicia Kuin See Good, page 12 In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more Untitled-7 1 2018-08-28 2:28 PM

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