Conflict Resolution in Islam

Why an “Islamic” Model?

Muslims seem to identify with a historical heritage, and almost to feel a sense of ownership of this heritage. This heritage is not subject to the confusing scholarly interpretations, or the abusive institutions that have overshadowed the social and political history of Islam. Rather, it represents to Muslims the pure ideals of their religion. These ideals also represents a reality that once existed, of which any Muslim proudly feels that s/he is an integral part; that is, every Muslim owns this heritage, and this heritage is part of what every Muslim is. This “love” relationship with their Islamic religious heritage always provided continuity and momentum to Muslim societies, in spite of political and social institutions that strayed too far from that heritage. (Caveat--assess the situation)

*PRINCIPLES OF ISLAMIC INTERPERSONAL CONFLICT INTERVENTION: A SEARCH WITHIN ISLAM AND WESTERN LITERATURE By: Amr Abdalla

What is the Role of Mediators?

The role of dispute interveners in restoring to Islam the messages of justice, equality and freedom, was described in the Qur’an on several occasions. Almost all stories in the Qur’an indicated that the prophets confronted societies which had institutionalized social, economic or political unjust and unfair practices.

Those who wanted to maintain the status quo usually rejected the message of a prophet because they grew accustomed to certain norms and practices, and were not about to change them. A prophet’s mission was usually to lead these societies away from distorted beliefs and practices, towards justice, compassion and equality.

The mission of the prophet of Islam, Muhammad, was no exception. And as Muslims aspire to model their behavior after Qur’an and Sunnah, it becomes the task of Muslim conflict interveners to replicate the process of restoring the Islamic principles. By clarifying to conflicted parties the misperceptions and negative practices that for long have influenced their lives.

Basis for Conflict Resolution in Islam

Islamic sources are rich with conflict intervention principles, values and models that are ready to be explored, researched and articulated in a language that would prepare them for contemporary practice.

They should not be ignored simply because western models for interpersonal conflict intervention are built upon assumptions of individualism and autonomous existence.

An effective Islamic model of conflict intervention will adapt a variety of techniques which are compatible with Islamic principles, and which best correspond to each conflict stage or condition.

Principles to Guiding Conflict Resolution in Islam

1. Restoring to Islam its messages of justice, freedom and equality.

a. Iblis’s story of false hierarchies--disruption of power and control so that you are truly equals coming to the table.

b. Islam’s Diversity Principle

c. Standing Firm Against Injustice

2. Engaging the community in the intervention and resolution processes.

a. concept of shura/consultation

3. Adjusting intervention techniques according to the conflict situation and stages.

Why Dispute Resolution?

The dispute resolution movement in the west emerged, in part, out of a dire need to address the shortcomings of the traditional judicial system, and the realization that promoting issues of social justice, equality and freedom requires the development of dispute resolution models which will insure the fulfillment of these principles. Among western models which address matters of social justice, two positions seem to be most relevant to application in Islamic models: The Empowering Position and the Common Good position.

Discuss both of these from the perspective of a “community” involvement angle.

Prophetic Model of Conflict Resolution

Story of the “black stone”

How could this be applied to family conflict?

Letter of the Law vs. Spirit of the Law

Qur’an provides several rules related to divorce situations and conditions. Four elements:

1) a description of a divorce situation;

2) a rule related to a certain aspect of the divorce (i.e., financial arrangements as a result of the divorce, custody or nursing children);

3) a description of the civility and mannerism which parties should maintain during the process of divorce; and,

4) a reminder to the parties that they are accountable to their Creator for their actions.

Letter of the Law vs. Spirit of the Law

Fiqh usually focuses on the first two elements: the situation and the rule; together they make the Islamic law. Dispute resolution, on the other hand, attempts to maximize the benefit to the parties of applying not only the first two elements, but also the third and fourth elements which relate to morality, justice and accountability. Dispute resolution, thus, attempts to operate within the larger Islamic world view, not just within its traditional legal system.

Does the Qur’an Mention Alternative Dispute Resolution?

And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things].

Mediation in the U.S. Context

While KARAMAH is engaged in family law matters, it is always for survivors of DV for whom mediation is not recommended (see Iblis argument)

Often it is still recommended or ordered by courts

Time

Money

Children

In many Muslim cases, it is often sought out as a good option because you can take into account Islamic considerations

Mahr

Custody

Inheritance

The UK Situation

Because Muslim marriages are not de facto legal (necessarily) alternative dispute resolution might be the only model

We saw this in the US with the “get” tribunals

Mediation in Morocco

Generally, in many Muslim majority countries the term “mediation” is equated with arbitration and even reconciliation.

Article 81

The court shall subpoena the two spouses for a reconciliation attempt.

If the husband personally receives the summons and does not appear, this is considered a withdrawal of his

petition.

If the wife personally receives the summons, and neither appears nor submits a written response, the court

notifies her through the Public Prosecutor that if she does not appear, the case will be decided in her

absence.

When the wife’s address is unknown, the court, with the assistance of the Public Prosecutor, determines the

facts, and if it is established that the husband provided false statements, upon the wife’s request he shall

incur the penalties provided for by Article 361 of the Penal Code.

Moroccan Code

Article 82

When the two spouses appear, the discussions take place in the consultation room, including the

hearing of witnesses and any other person the court deems useful to hear.

The court may take all necessary measures, including the appointment of two arbitrators, a family

council or whomever it deems qualified to reconcile the couple. In the existence of children, the

court undertakes two reconciliation attempts separated by a minimum of 30 days.

If the attempts to reconcile the spouses succeed, an official report is written and filed at the court.

Moroccan Code

Article 83If the attempts to reconcile the spouses fail, the court shall fix a sum of money that the husband must

deposit at the court within a maximum delay of thirty days to discharge all vested rights due to the wife and dependent children as provided for by the two following articles.

Iran

According to Article 8 of the Family Protection Law, the husband could not divorce his wife without first applying to the court for a certificate of non-reconciliation. The court in turn was required to call for reconciliation between the parties by designating one or two arbitrators to act as intermediaries in order to bring about reconciliation. If no reconciliation is reached, the court will issue a Certificate of Non-Reconciliation. The requirement to produce a certificate of non-reconciliation also applied to a wife who had the power of attorney to repudiate herself if her husband did not abide by the stipulations included in the marriage contract.

Iran Continued

This article is a departure from Article 1133 of the Civil Code of 1928 which stated “A husband has the

right to divorce his wife whenever he desires”, and “a divorce shall take place only when the prescribed

words have been expressed and these are at least two just men have listened to the prescribed words

when expressed.” (See Article 1134 of Civil Code, 1968). Article 9 placed the responsibility for reaching

agreement of maintenance and child custody in the hands of the couple who jointly sought a divorce. If

the couple could not reach an agreement, the court would intervene. Article 13 placed the

responsibility of setting maintenance and child custody to the court in the event where one party

sought a divorce. The court would take the best interest of the child when issuing an order of custody.