Two ADR Paradigms?

Our traditional laws are not dead. They are bruised and battered but are alive within the hearts and minds of the [I]ndigenous peoples across their lands. Our elders hold these laws within their hearts for us. We have only to reach out and live the laws. They do not need the sanction of the non-[I]ndigenous world to implement our laws. These laws are given to us by the Creator to use. We are going to begin by using them as they were intended. It is our obligation to the children yet unborn (Venne, as cited in RCAP 1994:122).

By the mid-1980s the field of conflict resolution began to recognize the importance of cultural issues. One of the major findings of the Multiculturalism and Dispute Resolution Project at the University of Victoria was that the majority of disputes involving people outside of the Euro-Canadian culture remained largely unaddressed (LeBaron, 2004:14). This coupled with the over-representation of Aboriginal people within the criminal justice system (whether from arrest to incarceration), the under-representation of Aboriginal people in positions of authority within this system, and the under-utilization of either formal or ADR processes by Aboriginal people to resolve disputes all indicate that something needed to be done to increase Aboriginal peoples involvement in resolving disputes.

In response to these issues there has been rejuvenation and increased acknowledgement, by Aboriginal and non-Aboriginal people, of traditional Indigenous methods of resolving disputes. Like Western forms of ADR, Indigenous forms may also operate either within or as an annex to the formal court system. Examples include community mediation circles, Elders sentence advisory panels, community sentencing committees, family group conferencing and sentencing circles (see for example Green, 1998). These types of ADR processes, however, are often strongly criticized as simply "indigenization" of the current Canadian system (Lee, 2005; Tauri, 2005). While they may to a small degree increase the participation of Aboriginal people within the dispute resolution process, they do very little to substantially address systemic and societal issues of racism, discrimination, oppression and eurocentrism. Many argue that simply "accommodating" Aboriginal identity and culture is not enough (see Poundmaker text for example).

There is presently a movement of Indigenous forms of ADR that operate entirely separate from the formal Canadian system and from within an entirely Indigenous paradigm. A conceptual framework may be helpful in understanding the difference between Indigenous paradigms of dispute resolution and the "indigenization" of western ADR models. Two frameworks are particularly useful. The first, Rupert Ross’ (1994) notion of "dueling paradigms," operates much like a straight line or continuum. Ross (1994) places Western forms of criminal justice at one end of the continuum and Aboriginal justice at the other end. All programs can thereby be placed anywhere along the continuum depending on whether they operate from within a Western paradigm (focused mostly upon punishment and crime control) or an Aboriginal one (focus upon traditional teachings and healing).

For the current analysis, Western ADR processes would be placed at one end of the continuum and Indigenous forums at the other, with the understanding that any ADR process may operate anywhere along the continuum. For example, Aboriginal courts and tribunals would operate closer to the western end of the continuum and the Navajo Peacekeepers would operate closer to the Aboriginal end of the continuum with most processes such as the Métis Mediation Healing circles operating in the middle. It would also be possible for ADR processes that use flexible approaches to slide along the continuum during the dispute resolution process.

Conceptual Diagram

* This diagram is a compilation of the ideas expressed in Bell and Kahane’s book, Intercultural Dispute Resolution in Aboriginal Contexts, as applied to Ross’s (1994) "dueling paradigms" model.

The second conceptual framework is provided by Mary Ellen Turpel (1994). She suggests that Aboriginal systems of justice would run parallel to the Western criminal justice system but at several points, there would be points of convergence in which the two systems meet and work together. Macfarlane also discusses "convergence" but not in relation to parallel systems (2004:99). Rather the concept provided by Macfarlane is convergence that results when different cultures of conflict resolution collide; she is not referring to anything "new," transformative or integrative resulting from this collision, rather she uses the term to describe cross fertilization and mutual influence. Macfarlane acknowledges that this type of convergence may not be desirable and may in fact be seen as a "polite form of assimilation" (99). And given issues of power imbalances, cultural differences and language barriers, assimilation may be a result of this type of convergence.

On the other hand, the framework provided by Turpel, and to some degree by Dewhurst, discusses points of convergence for parallel systems. With two equally present systems, issues of cooptation, cultural appropriation and/or exploitation and assimilation are less of a threat. Points of convergence could also operate either way, with Aboriginal systems at times "borrowing" from the Western systems and vice versa. To provide an example, the most obvious is best (keeping in mind that while the most obvious example may not necessarily be the most common example). In those rare situations whereby someone is causing harm to the people and/or community and is refusing or unwilling to stop, Aboriginal communities could banish this person from the community. However, this response may then put relatives (and strangers for that matter) from a nearby community in danger. Therefore, this may be a rare occasion where -- provided the situation does not require mental illness assistance -- incarceration is the only thing that can ensure the safety of valuable and often vulnerable members of the community (especially women and children). This could be a point of convergence whereby the Indigenous system uses a resource already available within the Western system.

The interesting caveat of this conceptual framework is that either paradigm has the option of borrowing from the other. There are a whole host of questions and concerns that come along with this, one for instance being that "convergence" if not done carefully could simply amount to nothing more than "a polite form of assimilation" (Macfarlane, 2004:99). For the present purpose of this paper, an important point is that Indigenous paradigms of justice and ADR have the most to offer their own people, but they also have something to offer non-Indigenous people when done respectfully and steps are taken to avoid cooptation and/or cultural exploitation.