Abstract:
When a legal system looks neutral on the surface, many will assume that
it produces fair results. This assumption is incorrect, as the experience of
Aboriginal Australians bears out: seemingly neutral institutions can often
contain inherent biases, and can generate biased results.
I want to explore and explain how Australia's seemingly neutral laws
contain and create bias, and how this cultural conflict extends to popular
methods of alternative dispute resolution, particularly mediation models.
I will begin by looking at the Eurocentric nationalistic imagery and
ideals that feature prominently in Aboriginal policy and in the way that
the legal system treats Aboriginal rights, particularly in relation to land.
This will assist in highlighting the ways in which laws contain bias and so
work, in often unnoticed ways, to create an unequal power balance that
disadvantages Aboriginal people. This highlights the need for "alternatives"
to the legal system as a way of providing fair, equitable, and just outcomes
to disputes. From here I will explore dispute resolution mechanisms
used in Indigenous cultures and suggest ways that those assist in the
identification of cultural conflict with dominant Australian culture's legal
system. I then seek to draw out these cultural conflicts in relation to commonly
used mediation models to show that mediation, as structured in
many models, is not an "alternative" to the dominant legal system but an
extension of it.
