Ihumātao – lessons for mediators

Written by Denise Evans

This is not an article about the issues at Ihumātao as I am not competent to write such a piece without a whole lot more education and knowledge.  I am writing this piece as something to spark a conversation about the difference between settlement of disputes and resolution of conflict.

I find it interesting to read comment which says that the issues about Ihumātao were settled in a full and final settlement of treaty breach claim. Also that the land cannot be returned to its original owners as the land is now in private ownership. This leads to a conclusion that the Crown cannot return land that it does not own.

As a mediator, I firmly believe that it is necessary first to consider the issues about how parties attending mediation will participate fully in the process; how they will be protected from things such as power imbalance, unconscious bias from me as the mediator, lack of information or skill by the mediator and or any of the parties, as well as dealing with any special requirements that the parties might have because of disability or anything else which might impact on the parties coming to an agreement which is sustainable.  I also consider the importance of the agreement to mediate as it establishes a partnership between the parties that they will work together in good faith and use their best efforts to ensure they reach an agreement which provides as much as a win for each of the parties as possible and especially in something which impacts parties who are not at the table – a win for them too.

In this frame, I look at the setup of the process for resolution of treaty breaches. I consider the damage done by colonisation in the raft of legislative instruments which have impacted on Māori, the loss of land through confiscation and the colonial assumption that both the Crown and Māori are equal in the negotiation.  I look at the framework for negotiation which was established by parliament from a Te Ao Pakeha perspective and a promise made that there would be no impact on land in private ownership.  Looking back in our history one can see that there is a problem in that framework which was inevitably going to lead to more conflict.

How can we deny that Ihumātao was confiscated in breach of the protections, obligations and rights enshrined in the Treaty?

I am confused by my legal education which taught me that a person selling something cannot pass a better title to something they purport to own than they have at the time of sale. I also learned about the indefeasibility of title under the Torrens system of land ownership registration and about the tracing capability of the Crown in assets that were obtained because of a crime. As the land was illegally confiscated then the claim of ownership is surely forever tainted by that.  

This is the background from which I write this piece.

I have heard it said many times that mediation is a process where a good result can be determined on the basis that people leave the mediation feeling equally “screwed”, that it works best when people negotiate late into the night to obtain a settlement that they can ”live with” and when the full and final document is signed before the party’s leave so that there is no risk to the settlement from “mediation regret”.

That is not the promise of mediation that I signed up to. For me mediation is a process which enables parties to have “heart felt” conversations.  The parties to the mediation generally have had a relationship whether that be based on a commercial, building or some other contract or a personal relationship.  Some mediation teaching talks about mediation being most appropriate when there is likely to be an ongoing relationship between the parties in the future. The reality is that on the islands we live on it is most likely all parties will have an ongoing relationship as islanders of Aotearoa New Zealand and even if they don’t, the value of ending relationships well is immeasurable.

So back to the lessons for mediators from Ihumātao. If the mediator’s focus is on getting the parties to settle the dispute as it has been defined by the parties at the outset, without deep enquiry into the interests of the parties, both immediate and in the future, the settlement will be too narrow and will never resolve the conflict. 

Ken Cloke in his wonderful first text for mediators “Mediating Dangerously” writes about how anger is the outward expression of grief and or fear.  A party who comes to mediation in anger needs the mediator to patiently enquire as to the source of the anger.  Fear is evident in much of the commentary about Ihumātao – fear that the special nature of the land will be lost, fear that there will be an increase in racial disharmony, fear that people will be hurt, fear that we will never live in a settled land.

The way I read it, the anger about Ihumātao from a mediator’s perspective is that we are seeing the expression of grief from some Māori caused by the loss of land through confiscation, through other wrongs which have been done to Māori through the use of proclaimed power and the fear from some non Māori about potential loss of assets in private ownership as well as a concern about whether or not the breach of treaty issues will ever be over.

In my view, this conflict is incapable of settlement through compromise – it is very capable of resolution if, as I hope, the parties meet with skilled mediators who can assist them have a conversation based on the parties’ interests overlaid by the interests of all New Zealanders who are not at the table and who will forever be affected by what happens at Ihumātao.

About the author 
Denise Evans is Principal, Dispute Resolution at Fair Way. As part of this role, Denise provides Dispute Resolution leadership within Fair Way and champions the use of Dispute Resolution services in New Zealand and internationally.

Denise has over 35 years’ experience as a lawyer, mediator and arbitrator, and she has vast experience in resolving commercial and family disputes. If you would like to get in touch with Denise, please contact her by email at denise.evans@fairwayresolution.com