Mediation and Development: Theory and Practice of court-based mediation in PNG

Craig Jones PNG Accredited Mediator Judge Ambeng Kandakasi National and Supreme Court Judge PNG National Mediation Conference 9 September 2014

Introduction: What story to tell?

There’s a bigger story than just resolving conflicts

Development is a bigger story

Can mediation play a role in national development?

Mediation is a form of SOCIAL ENTERPRISE that enables communities, regions and even states to achieve development outcomes

This presentation addresses the what, the who and how of court-based mediation in PNG

A prayer?

Would you? Could you?

Some definitions

This is the theory bit

Social enterprise – A form of collective work or process designed to achieve a social outcome

SE characteristics - part of the new economy- sites are distributed - distributed network - trust is a key item of exchange - risk ID and management are important – decision-making is a product – participants are involved in a service journey

PNG style

There is a mediation system including regulations and case law

PNG possesses a structured national and consistent mediation system

4 years of practice

Broad scope – topic and geography

Resilient – participants regularly say it’s a good thing – it served their needs

Running at altitude

More mediation in PNG

The service pathway – court – order – mediation – agreement – order

Some matters are commercial or family

Many matters are environmental/resources/agricultural – many parties/on location/can be 1000’s

Training and proficiency

Party?

Method

Facilative or interest-based and directive

Tok Pisin Mediation Steps

Steps: Intake, What issues come from stories?; What questions come from issues?; What options come from exploration of issues?; What values help with choosing the options? Checking the detail helps make an agreement? An agreement helps resolve the court matter with an order.

Tok Pisin Mediation Steps

Tokautim pasim lo bolo mediation

Stori bolo wanpela wanpela wantaim mediator

Tokim stori bolo yu

Kamautim ol bel hevi

Tok stret na tok tru lo ol hevi

Painim ol rot lo stretim

Painim ol rot lo stretim

Tok Pisin

Sikelim ol rot wantaim olgeta

Sikelim ol rot wantaim wanpela wanpela

Na wan bel lo wanpela wea igut

Sainim pepa long makim wan bel

Mediation work

What is a mediation story?

Resources or infrastructure - 20 000 people?

Who should participate? Who should decide?

What about violence? What about safety?

What about women?

What about time? 17years v 5 days

Practice: Record, theatre, humour, many days

Fan Belt?

Ethics

Mediator must be useful (time cost process)

Leave behind more value than you take out (payment exchange governance possibility)

Utilitarian (sustainability)

Do no harm ( leave your bags at home)

Settlement

Settlement allows for clear decision-making

Settlement allows for generational transfer

Settlement manages opportunistic behaviour

Settlement requires a decision and commitment

Conflict provides the opportunity

Risk created by conflict is managed effectively allowing for social and capital investment

Difficult Terrain

Conclusion

Mediation is important

Mediation can contribute to development

Mediation is not just a process perform by rote

Mediation is a social enterprise using design principles, ethics and theatre to produce durable outcomes that support communities to achieve a chosen future

It all takes energy