Introduction

Mediation is on the rise in the Pacific. However, there is a distinct lack of research tracking its development. This article explores the current state of mediation in various Pacific nations based on conversations with mediators and professionals in the area. In doing so, this will provide a roadmap of how mediation has developed in the Pacific and an opportunity for engagement with other approaches to mediation and building meditative capacity.

Samoa

Samoa has a relatively well-developed mediation system. After receiving some assistance from the International Finance Corporation (IFC) in 2012, Samoa launched rules to govern mediation in 2013. Samoa has also established a governing body for mediation (the Accredited Mediators of Samoa) which secured funding from the World Bank to train future mediators.[1] These are significant steps to developing meditative capacity and the accessibility of mediation services.

In Samoan land disputes, mediation is also used alongside and mixed with customary Samoan forms of dispute resolution. For example, a registrar might act as both a mediator and a matai to resolve the conflict.[2] Using mediation alongside customary and local forms of dispute resolution is a common approach in the Pacific that can be seen further in other Pacific countries such as Vanuatu, discussed further below.

Tuvalu

Tuvalu does not commonly practice mediation. Presently, there is no governing law or body for mediation in the region. Accordingly, the Courts very rarely refer or order parties to attempt mediation. Nonetheless, there are occasions when the court does believe it is both realistic and in the parties’ best interests to settle their issues outside of court, and in these infrequent circumstances, courts will order the parties to do so. However, this often takes the form of negotiation (often solely between the parties’ lawyers) rather than mediation.

However, this lack of alternative forms of dispute resolution may be exacerbating the backlog in Tuvalu’s legal system. This backlog arises in part due to the non-resident appellate court structure and the one-person office of the Senior Magistrate. Accordingly, Tuvalu’s Office of the People’s lawyer decided to do something about the growing list of unresolved cases by working with the Australian Dispute Centre to train six of their own staff as mediators. The hope is that mediation will provide a faster and more satisfactory method of resolving disputes, thereby reducing the load on the courts. As of writing, three of these mediators have been accredited, while the remaining three await their final results.

Nonetheless, much work still needs to be done to develop meditative capacity in Tuvalu, especially to give it more credibility before the courts. In particular, legal recognition of mediation’s role in dispute resolution would be beneficial, along with rules to regulate it in Tuvalu. Tuvalu’s Office of the People’s Lawyer aims to work on this in 2022.

Cook Islands

Mediation is also relatively uncommon in the Cook Islands, but it has developed in recent years. Courts have no authority to order mediation on parties. However, Cook Island courts can and do recommend parties attempt mediation. Judicial settlement conferences are also used by judges and, to a far lesser degree, by justices of the peace. A volunteer NGO called Tauranga Aka’Au was established in 2019 as the governing body for mediators and mediation in the Cook Islands.

The Cook Islands Laws Society, with the assistance of the New Zealand Law Society, Massey University and Lexis Nexis, ran training programmes every two or three years until 2021. This earlier training did not result in qualification but provided the basis for developing mediation theory and skills. In 2021, the Resolution Institute of New Zealand delivered training towards accreditation. Also in 2021, the International Labour Organisation (ILO) provided online training for five people in ILO models of dispute resolution; this was extremely valuable for the participants who then went on to the accreditation assessment with the Resolution Institute of NZ.

Additionally, with the assistance of the ILO, the Ministry of Internal Affairs also set up a project for employment dispute mediation. They contracted with Tauranga Aka’Au to deliver those mediations. However, there has been slow uptake of these mediation services to date.

Vanuatu

Vanuatu has been developing meditative capacity for a while. In 2009, the IFC sponsored a law week in Vanuatu, which included forums designed to increase public awareness and recognition of mediation.[3] Vanuatu’s civil procedure rules provide the inclusion of mediation. Part 10 of of the rules now allows for court-directed mediation.[4] The ombudsman can also undertake mediation under s 13 of the Ombudsman Act.[5] However, Vanuatu is particularly interesting for its approach to its customary dispute resolution methods and how these interact with western mediation theory.

In 2005, a unique programme was initiated to take local Kastom law and governance seriously while also building dispute resolution capacity in the region. The Kastom Governance Partnership is run by the Malvatumauri National Council of Chiefs, the Australian Centre for Peace and Conflict Studies, and AusAID.[6] The partnership’s goal was to prevent violent conflicts, strengthen local forms of governance, and introduce western tools and theories of mediation without imposition. Through a series of storians, chiefs could come together and discuss common questions and issues, providing a supportive and reflective opportunity to share their approaches to conflict resolution and Kastom law. In this way, the storians sought to reinvigorate Vanuatu’s pre-existing methodologies and capacity for dispute resolution. Alongside the chiefs, Australian facilitators also shared their approaches to dispute resolution, which consisted of western theories of mediation. In this way, chiefs were allowed to engage with various customary and western tools for dispute resolution and adopt, adapt or even disregard them as they saw fit for their circumstances. Additionally, it is essential to note that these storians also focused on good governance generally and the interplay between indigenous and imposed governance structures.

This program concluded in 2012, but its legacy can perhaps be seen in the reaffirmation of Kastom law and the chief’s position as a resolver of conflict—for example, in their 2019 security statement, the Vanuatu government expressed reliance on the chiefs to assist in managing security.

Solomon Islands

The Solomon Islands has a violent history of ethnic and political conflict. Perhaps in response, their government established a mediation programme to handle, even potentially violent, conflicts. Similar to other mixed approaches that rely on pre-existing dispute resolution capacity, it is based upon using eminent persons in the community and trained peace-building officers.[7] Families, communities, and even government ministries can request mediation. In this way, customary knowledge and sensibilities can be used to resolve conflicts and disputes.

Papua New Guinea

Similarly, to the Solomon Islands, violence and unrest are ongoing issues in Papua New Guinea. There is also a significant backlog of legal cases. With the assistance of the IFC, Papua New Guinea passed mediation rules in 2010,[8] trained mediators, and delivered public awareness workshops.[9] Port Moresby also has an Alternative Dispute Resolution (ADR) Centre.

In Papua New Guinea, there is a legislative authority for land disputes to be settled through mediation. As is a recurrent theme in the Pacific, this includes scope for mediators to seek the assistance of customary dispute settlement authorities. However, there have been issues of land mediators and village court magistrates abusing their powers under the Land Dispute Settlement Act 1975, resulting in Papua New Guinea’s ADR centre to see whether all mediators should be required to be accredited under the country’s ADR rules.

New Caledonia

Mediation is relatively well established and well used in New Caledonia, and it continues to grow. For example, several bodies for mediation operate in New Caledonia, including ORASE and the Mediation Institute of New Caledonia. The Kanak people also use customary forms of mediation according to their traditional dispute resolution methods. Even western forms of mediation are well received due to a greater local attachment to oral promises and oral expression. Furthermore, customary indigenous conferences/palavers also share similarities with western ideas of negotiation and mediation.

Nonetheless, mediation is still not extremely popular in New Caledonia.

Although New Caledonia’s civil procedure codes allow the courts to order mediation, the judges themselves practice discretion on this matter. Some judges are favourable towards mediation and make such orders whereas others do not believe in the benefits of mediation and accordingly, never instruct the parties to mediate. Hence, the actual practice of mediation depends mainly on the opinion of individual judges.

Currently, in New Caledonia, there is no framework for mediation, and anyone can advertise themselves as a mediator without a diploma or training. Therefore, the Mediation Institute of New Caledonia seeks to develop legislation that puts a judicial framework with a minimum standard in place. In doing so, they hope to give legitimacy to mediators and mediation, and confidence to judges who might consider ordering mediation.

Micronesia

Mediation in the islands of Micronesia has reached various levels of development and usage on each island. For example, Palau has a vast court backlog, particularly in estate cases. Mediation has been extremely popular and successfully addressed these cases more quickly than in court, thus reducing the backlog. On the other hand, in Yap, despite having a mediation program since 2016 and a sufficient supply of mediators, only three cases have ever been mediated since the program began. This number is primarily attributed to the scant number of civil cases each year. There simply isn’t the same backlog in the courts, and therefore there is less incentive to pursue mediation.

Various islands also require mediation in certain circumstances. For example, in Guam, medical malpractice cases must go to mediation before it goes to court. Additionally, some found that mediation was more appealing and in line with local values and beliefs than courts were, which could feel alien and intimidating. For example, in Pohnpei, mediation helped significantly reduce the caseload of the municipal courts.

However, there remain significant issues to be addressed. Although some islands have implemented solutions to manage mediation costs when parties are indigent, this is not universal. Furthermore, the issue of preventing mediator bias remains in very small communities where people are likely to know one another.

Conclusion

Mediation has developed a great deal in the Pacific due to the hard work of local organisations, professionals, and occasional aid from the outside. Nevertheless, there remains plenty to be done to maximise mediation’s potential benefits and give it further legitimacy. Part of this work can and should include development and invigoration of existing customary forms of dispute resolution. Western mediation can help supplement, rather than supplant, these indigenous methodologies as exemplified by the Storians in Vanuatu. Where appropriate, customary and western forms of mediation or dispute resolution can help reduce court backlog, provide faster results, and prevent or mitigate the outbreak of violent conflict. This article highlights the progress made so far and the potential for growth, allowing mediation professionals in the Pacific and elsewhere to learn from other mediation approaches and build mediation capacity.


[1] https://www.samoaobserver.ws/category/samoa/23743

[2]  Pg 28-29. https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/5089/paper.pdf?sequence=1

[3] https://pressroom.ifc.org/all/pages/PressDetail.aspx?ID=24327

[4]  https://courts.gov.vu/images/downloads/Court_Rules/Civil-Procedure-Rules.pdf

[5]  https://mjcs.gov.vu/index.php/justice-sector/ombudsman-office?highlight=WyJtZWRpYXRpb24iXQ==

[6] https://www.researchgate.net/publication/333704121_A_few_more_arrows_Strengthening_mediative_capacity_in_Vanuatu

[7] https://solomons.gov.sb/ministry-of-traditional-governance-peace-and-ecclesiastical-affairs/essential-services-tradional-gov/access-conflict-mediation-assistance/

[8]  https://www.pngjudiciary.gov.pg/index.php/national-court/civil-cases/adr/adr-acts-rules

[9] https://pressroom.ifc.org/all/pages/PressDetail.aspx?ID=24213