Providing a culturally appropriate process for FDR in 2021

Written by Will Story 

“He aha te nea nui o tea o? He tangata, he tangata, he tangata.”

What is the most important thing in the world? It is the people, it is the people, it is the people.

This popular Māori proverb recently took on a new meaning for me. Together with our Head of Practice Samantha de Coning and Resolution Practitioner Ash Ratnam, I was privileged to attend the 2021 AMINZ conference held at Te Puia at Rotorua – a venue fitting for a conference in which we were immersed in the history of our country and challenged on the profession’s response to diversity and inclusion – themes central to the conference.

We were privileged to hear from our wonderful Supreme Court Judge, the Honourable Justice Sir Joe Williams and our Chief District Court Judge Heemi Taumaunu – both men of mana and excellent representatives of our Judiciary. Both spoke in compelling terms of the urgency for us dispute resolvers to embrace tikanga (which Justice Williams reminded us is present in many facets of our legal system) and contribute to change to lead us to an enlightened world, Te Ao Mārama, where the needs of all people of Aotearoa may be met. This may sound aspirational, but really it was a sobering exercise to reflect on the multiple opportunities which we have had for change over the past 30 years which have not always been embraced. The time for change was yesterday. As dispute resolvers in 2021, we have some catching up to do if we are find true meaning in the partnership envisaged by our forebears who entered into te Tiriti.

As the Independent Panel commissioned by the former Minister of Justice Andrew Little to examine the 2014 family justice system reforms observed: “the case for recognising te ao Māori in law, policies and practices has been made repeatedly in reports on the justice sector and others dating back to the 1980s and even earlier.”  

Thankfully, change is happening. As the Honourable Justice Williams remarked in an interview following his investiture earlier this year: “So, we are witnessing a relatively glacial change in the approach, both of legislators and of judges to the nature of our law.”

The implementation of Judge Taumaunu’s Te Ao Mārama (which literally translates to the “world of light”) pilot Court provides for a different style of Court and justice administration. Commentators have observed that it is: “much less western, and much more Aotearoa” – building on the successes of the marae based Rangatahi courts. The vision is for participants to come to seek justice – to be seen, heard, understood and to meaningfully participate. The vision is inspiring!

Te Korowai Ture- ā-Whānau, the final report of the Independent Panel concluded that change to the family justice system is essential to, amongst other objectives, provide for a legislative commitment to te Tititi o Waitangi, respond to diversity and improve access to justice. To address these issues, it was recommended that in relation to Family Dispute Resolution (FDR):

  1. FDR be fully funded for all participants to encourage increased use.  
  2. Adequate funding for culturally appropriate FDR processes be provided.
  3. FDR regulations be amended to provide for a wider range of dispute resolution models.
  4. Direct the Ministry of Justice, in partnership with iwi, hapū and Māori organisations, to undertake work to ensure FDR kaupapa Māori services are delivered for, by and to Māori.

The Ministry of Justice is actively working on addressing and implementing the Te Korowai recommendations and we are eagerly watching the space. In the meantime, we cannot let the winds of change whistle past us. In practical terms, what can we, in the world of family dispute resolution, do to address these recommendations? What is it that our tangata whenua and other cultures want out of our FDR processes which aren’t already provided for?

As Sir Joe Williams aptly observed in the interview, the concept of partnership is a powerful one for Māori. Without risk of over-simplifying, what Māori have always wanted, according to Sir Joe, is a: “mutually sustaining relationship where they kept their mana and got all the advantages of the Pākehā world. There were considerable advantages they already knew about, in return for letting Pākehā come. And we wanted it to enhance our mana and enhance theirs.”

Sir Joe goes on: “The mutuality of advantage is exactly what the Treaty was all about. Exactly. But it takes imagination and courage and risk. You always risk, in a partnership, losing something of yourself in it. You always risk the other side of the partnership not being straight up with you and running off with the goods.”

Apt words. Partnership for me is also about respect. Commitment. Understanding. Appreciation. Mana. Manaakitanga. In the family dispute resolution world, it is about recognising that one size does not fit all. Our people are all very different, with different needs. A square peg may be adapted to fit a round hole. But in the process, it loses shape. It loses its character. It loses its identity and will finish up damaged. If there is one thing I took from AMINZ 2021, it is that we should not feel constrained by the way things are, or have been, if there is a better way. After all, why do we do what we do? He tangata, he tangata, he tangata! Let’s make everything we do about the people!

About the author

Will Story BA LLB is Operations Manager of Family Services at Fair Way Resolution Limited.

Before joining Fair Way, he was a practising Lawyer with significant experience in family law, property law and general practise (both in Hawke’s Bay and Wellington).

If you would like to get in touch with Will, please contact him by email at will.story@fairwayresolution.com