Culture is ideology, beliefs, typifications, and practices of a particular society of people (Sewell 1999)1. Conflict occurs when differing views or beliefs meet each other. Culture and conflict are closely linked and have an impact on identity, relationships and the conflict resolution processes undergone within a dispute (Loode 2001)2. This essay argues that culture negatively impacts on a just outcome of conflict resolution. Firstly, the ability to have an equal opportunity in a case is significantly affected by cultural differences. Secondly, cultural backgrounds contribute to a lack of understanding of court procedure due to generational cultural customs differing from law. Thirdly, the informal nature of dispute resolution processes can lead to a injustst outcome for those of a cultural background due to pressure from overpowering parties.
Cultural differences can significantly impact on the ability of a party to be equal before the law, and have an equal opportunity to present their case . Those from traditional areas who are not familiar with contemporary Australian society may experience problems in clearly understanding the English language as well as complicated evidence presented in court, thus are likely to experience difficulties in giving evidence in courts. Those of different cultural backgrounds, charged with a crime that they have pleaded not guilty to, have to adapt to a system that is different from their own. In an attempt to eliminate some of this inequality in August 2016 a new Koori County Court opened so that Aboriginal and Torres Strait Islander peoples in the Mildura region have access to the sentencing court. This followed the introduction of the hearing of Koori Court matters in Geelong from June 2016, which will be for both Magistrates’ Court and Children’s Court matters. Expanding the Koori court allows greater focus on the over representation of Indigenous and Torres strait islanders in prisons ( McAsey 2005)3. The courts and sentencing legislation amendment act 2012 ( vic) 4created a Melbourne county Koori Court for the sentencing of indigenous offenders in specific circumstances to improve their access to fair and culturally relevant justice. However, despite these revelations there are still significant inequalities in courts and other conflict resolution processes, as Koori courts are specifically targeted to indigenous offenders in specific circumstances and thus not covering all disputes of indigenous Australians. Ultimately maintaining differing cultural understanding of law for indigenous australians in regular conflict resolution and law processes.
Culture can contribute to minimal understanding of the courts processes and procedures as different cultures portray values and beliefs which may conflict with the law (Arai 2006).5 Aboriginal and Torres Strait Islander peoples are a large culture in Australia who have a complex system of law and customs, handed down from generation to generation. Creating a difference between law and their generational customs and beliefs. In a court procedure Aboriginal and Torres Strait Islander peoples may not understand why they have to tell the same story over and over during processes such as examination- in-chief and cross-examination. In an attempt not to offend the authorities, they may think they are required to change their story for each telling. This makes it easier for the barrister to make a witness appear inconsistent. Indigenous witnesses often give their view of the facts honestly during evidence-in-chief, but badly in cross-examination because they do not understand its purpose. This results in Aboriginal and Torres Strait Islanders not being able to fully understand the extent of their legal rights which results in not fully accessing their rights. Therefore creates inequality within the law and disadvantages in cases of Aboriginal and Torres Strait Islander peoples as they appear inconsistent due to their lack of understanding in conflict resolution processes.
In dispute resolution processes such as Mediation and conciliation, stronger parties who are more familiar with the law can appear superior over parties who are less familiar with law. Mediation and conciliation offer a dispute resolution process where the third party simply facilitates discussion and cannot impose a resolution on the parties, unlike other dispute resolution processes such as trials where the judge is able to formulate a fair and just outcome to impose on the disputing parties (Roşu 2012).6 As such those of a different cultural background can potentially be disadvantaged in the dispute resolution process of mediation or conciliation. A party of a different cultural background may not fully understand the complex nature of law, the informal environment of these dispute resolution processes can lead to a larger party who understands the complexities of law to be dominant in facilitation of the resolution, this cultural barrier can lead to those with less knowledge with their rights to agree on a outcome that they are not satisfied with as they feel a need to by the overwhelming pressure placed by the other party, thus leading to an outcome significantly favouring the dominant party. Therefore preventing one to seek an equal outcome in informal conflict resolution processes can greatly impact on justice being achieved.
In conclusion, people of a cultural background who are not familiar with contemporary Australian society can be significantly prevented from fully accessing justice in the conflict resolution due to a minimal knowledge of court procedure created by generational cultural customs differing from Australian law, and the inability to express their rights due to a lack of understanding.
- Angelica Roşu, ‘Alternative Dispute Resolution – Justice without Trial?’ (2012) EIRP Proceedings, 7(1), 281-284.
- Bridget McAsey, ‘A Critical Evaluation of the Koori Court Division of the Victorian Magistrates' Court’ (2005) Deakin Law Review , 10(2), 654-685.
- Serge Loode, ‘Navigating the uncharted waters of cross-cultural conflict resolution education’ (2011) Conflict Resolution Quarterly, 29(1), 65-84.
- Tatsushi Arai, ‘When the Waters of Conict and Culture Meet’ (2006) Conict Across Cultures: A Unique Experience of Bridging Differences, 9 9-101.
- The Courts and Sentencing Legislation Amendment Act 2012 (vic)
- William Sewell, ‘A Theory of Structure: Duality, Agency, and Transformation’ (1992) American Journal of Sociology, 20.