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What factors contribute to whether an agreement is reached and how can a mediator work with these 'other' forces.

Native title mediation is a unique and complex field for agreement-making. It is conducted within a number of frameworks at different levels which present the mediator with varying degrees of control. Some of these frameworks include legislative and statutory requirements; native title jurisprudence; resources, policies and positions of some key players such as the Federal Court, Commonwealth and State/Territory governments and native title representative bodies (land councils); and the remote and recent histories of the claimant groups, their current circumstances and aspirations.

Other distinguishing factors of this mediation are its cross-cultural nature, involving multiple parties in numerous meetings and agreements that require unanimous consent. An additional complicating feature is that the majority of negotiations are conducted with representatives of a larger group of decision-makers who are not present at the table.

This session presents statistics which elicit patterns and indications of the impacts of some of the factors cited. These can either inhibit or progress native title mediation to a successful resolution. Some of these factors, their consequences and a variety of strategies are explored with attendees in this session.

To date there have been eighty determinations that native title exists which have been the result of multiple parties having reached agreement. Although there is a national scheme established under the Native Title Act 1993 (Cth) to resolve claims that encourages outcomes by agreement, there are widely different circumstances that conspire to either promote or impede reaching agreement. Whilst some of the circumstances are peculiar to native title there are lessons for all who aspire to be mediators. There have also been more than 500 separate Indigenous Land Use Agreements (ILUAs) registered across Australia under a statutory framework, but there is by no means a uniform spread of these voluntary agreements around Australia.

There may be times when agreement appears to be impossible and then, for no stated reason, agreement is reached very quickly. What might the forces be that are at play and what can mediators do to remove obstacles? The fact that there are forces at play, for and against agreement, irrespective of the skill of the mediator, is demonstrated by both experience and the evidence of when and where agreements are achieved.

The presentation will explore what the forces at play may be and how the mediator might deal with these.

Podcast: Listen to Graham talk about this session pre-kon gres (8 mins) >>

Native title mediation and determinations are often conducted ‘on-country’.

The consent determination of the Kowanyama People on south-western Cape York Peninsula (top) that native title exists was handed down by the Federal Court on 22 October and that of the Kuuku Ya’u People, north of Lockhart River township on eastern Cape York Peninsula middle) on 16 November 2009.

The most exotic location attended by Graham was Masingara village on the southern coast of Papua New Guinea, which entailed travel by ‘banana boat’ (bottom). Despite the unusual mode of travel and tropical monsoon weather, there was an opportunity for happy snaps en route to the mediation.