Peacemaking a traditional form of dispute resolution

 

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S ince 1982, the judicial branch has been working to reinforce peacemaking as a choice of the people for dispute resolution that is an alternative to the formal, adversarial process that requires lawyers and law books.

When used correctly, peacemaking allows people to have control over their dispute and to learn and grow through the process.

The process teaches lessons from our journey narratives and is a means for participants to reach a solid understanding of who they are, where they are from, and where they wish to go.

However, it has been clear for many years that the involvement of the courts in trying to preserve peacemaking has had inadvertent negative consequences that are now being reversed.

The most negative consequence has been an inadvertent changing of the character of peacemaking in order to fit modern notions of mediated settlement, which peacemaking is not.

A short history lesson should be given at this point.

Most of our people are now too young to remember that peacemaking, once used by clan elders, became obscure as the modern courts came into being. At first, our judges practiced some form of peacemaking by teaching values from the bench. Over time, and as our judges have become younger, the formality of law and law books took over.

The courthouse stopped being a place where our cultural identity was reinforced. Thirty years ago, our judges felt the shortcomings of the courthouses and yearned to apply methods in which the Diné people could see their values reflected. Our judges wanted to work in a system that incorporated aspects of our identity and history and was not entirely borrowed from somewhere else.

It was for this reason that the Judicial Conference created the Peacemaker Court in 1982. However, from the beginning mistakes were made. The first was calling peacemaking a "court." The second - which is commonly done in Anglo translations of Diné concepts - was to over-simplify the complex character of peacemaking in a manner that would fit the closest Anglo concept, which is mediated settlement.

A well-known example of over-simplification in translation is nalyééh. In many previous court opinions, it is referred to as "damages" or "restitution," because those words are the closest Anglo equivalents. However, any knowledgeable Diné would tell you that nalyééh does not mean these things.

The above use of nalyééh is far from its root meaning. Nalyééh in peacemaking is used with k'é ná'asdl?? and k'é níjísdl?? which mean gestures of peaceful engagement toward reconciliation.

Nalyééh may mean reparations, but not in the sense of restitution or damages when used traditionally. It is sometimes said that hozho is restored through nalyééh. The gestures of nalyééh, k'é ná'asdl??, k'é níjísdl?? are made when people engage each other. They are the process of turning a negative to a positive.


It is the achievement of the positive result of hozho. It is what is given to heal and adjust the relationship.

Laying blame plays no part in nalyééh and apologies are not normally made. It is not uncommon to have gestures of nalyééh, k'é ná'asdl??, k'é níjísdl?? by both sides.

For example, one of two brothers who have hurt each other may give the gift of a necklace, saying, "You are my brother." The other brother may then give a gift in return, saying, "You are my brother."

Peacemaking is to get to a place of unspoken apologies and a willingness to be accountable for each other's hozho in the future. It is an emotional journey that will need a disciplinarian at times, as our elders had performed. It will need teachings, because when human beings are experiencing chaos, hóóchxo', they may be engulfed in darkness.

Our youth, especially, need the discipline and teachings this process provides when they are in the midst of chaos, hóóchxo'.

There is no Anglo equivalent for peacemaking. However, for 30 years, the nearest Anglo method - mediated settlement - was applied to peacemaking, and aspects of peacemaking that did not look like Anglo mediated settlement began to be removed, until Diné peacemaking, hózh?ji naat'aah, became unrecognizable.

Steps are now being taken to return peacemaking to its essential character. The traditional components of peacemaking are being restored as the Peacemaking Program revises its guidelines. When the revisions are ready, hózh?ji naat'aah will regain its complexity.

The guidelines will clarify that the role of the peacemaker, hózh?ji naat´áanii, is not a neutral Anglo-style mediator but a dynamic and active disciplinarian and teacher, able to persuade, plead, scold and educate all those involved in order to make up their own minds to step away from hóóchxo'.

It is my hope that hózh?ji naat'aah will be used by the courts and agencies as authorized by the Council. The Council has emphasized the use of peacemaking in its enacted laws, first in 2000 in revising the Criminal Code, then in 2001 with the incorporation of the Peacemaking Division (now Program) into the Navajo Nation Code, in 2002 with the acknowledgement of our Fundamental Laws, and in 2011 with the enactment of the álchíní Bi Beehaz´ ánnii Act to ensure families are preserved or re-unified.

By Herb Yazzie
Chief Justice
Judicial Branch of the Navajo Nation