ADR in Muslim Thought

by Karim Mohamed, Solicitor and Mediator with Consensus Mediation.

During a break at a recent mediation that I was helping to conduct, my co-mediator asked me a direct question. He was aware that I was a lawyer specialising in professional negligence/commercial litigation and an experienced mediator. Moreover he also knew that my faith was the Islamic faith. So his question - is ADR a common notion in Muslim thought? I was happy to tell him that indeed it was!

Mediation is now recognised in the West as a credible means of resolving a wide range of issues as well as a practical and cost effective solution to litigation, however ADR has long been a familiar concept in many faiths and traditions - from pre Imperial China to the Judaic tradition as well as in Muslim thought.

Islam is a logical and benevolent religion that provides a framework in which relations between human beings are facilitated and conducted - faith guides every aspect of human life. In many instances, the Qur'an refers to the principle of resolving disputes through negotiated settlement. The ethical principle is to forgive: for to forgive is ennobling. Negotiated settlements are also encouraged if only to foster and preserve human relationships. Many such relationships, whether it is family or business, are destroyed by the process of litigation. Thus resolving conflicts through mediation establishes a productive relationship for the future.

The legislative or judicial impetus towards ADR in this country is recent. In many 'eastern' countries, ADR provisions exist within the legal framework of countries as diverse as Malaysia, Pakistan, Syria and Iraq. In these jurisdictions, ADR is seen as a social movement and as a just means to facilitate settlement of disputes beyond the adversarial process.

Of course, in many of the mediations that I am involved in, including those organised through Consensus Mediation, the issues involve commercial or private claims. But the principles remain the same even though there may be a different impetus for the attendance of the parties.

A Commentary from a Muslim lawyer in Pakistan

"Reconciliation is an important principle of our faith. We try to help the parties to come to a possible solution. Within our community we have established Arbitration Boards and submission to these is made on a voluntary basis. The Boards rely on various individuals, all with different expertise. Some are lawyers, others are business people. The task of these Boards is to assist in the conciliation process between parties in differences arising from commercial or other domestic matters including matrimony. The Boards may act as an arbitration and judicial body. Societies in the eastern world are closely woven into a network of community relationships.

The Arbitration Boards within my community, whilst operating within the laws of the land which we respect, are also firmly based on the ethics of the faith. Traditional approaches to resolving disputes are often successful. Some cases that are referred to the Arbitration Boards will necessarily take months to resolve. But the purpose is to restore trust and achieve reconciliation. Resolving differences within the community is natural and does work to deal with differences. It is a traditional system yet modern in the way it operates. Institutions have to evolve to serve successive generations and in a way to achieve amicable resolution where there is a dispute "

Extracts from a paper presented at the 4th International Conference of the World Mediation Forum by Mohamed M. Keshavjee, LLM (London) on May 10, 2003 Sheraton Hotel & Convention Centre, Buenos Aires, Argentina

"…………I would like to touch on the ethos underpinning the whole structure. The inspiration for this is in the revelation of Islam and practice in the early period of Islamic history. This inspiration was to sustain and strengthen the spirit of community through harmony and the spirit of brotherhood. The fountainhead of this is the Holy Qur'an which constitutes the guiding light for all Muslims.

This concept of reconciliation and harmony is also found in the traditions (sunna) of the Prophet Muhammad whose life is filled with examples of mediated solutions to human problems. There is a story that in the reconstruction of the Ka'ba, the building in Mecca to which Muslims go for pilgrimage, a dispute arose over the placing of the Black Stone (Hajar al-aswad) into the building. Each of the four tribes of the Quraysh wanted to have the honour of placing the stone to the exclusion of the others. An impasse arose and the matter was referred to the Prophet. He asked each of the contesting tribes to choose a leader. He then spread a full sheet of cloth on the floor and placed the stone in the centre, asking all four leaders to each hold it at one end and raise it together. Thus, a serious conflict was averted by the Prophet's prudent action in giving all four leaders an equal honour of placing the stone.

'Ali b. Abi Talib, the fourth caliph of Islam and the first Shi'i imam, extolled the virtue of dialogue and the value of compromise. He likened the assistance given to solve human disputes to prayer and encouraged negotiated settlements within the principles of the ethics of the faith.

According to a Shi'i tradition, Imam Husayn (d. 680), the son of Imam 'Ali, was once asked whether two persons, belonging to his community, who fall out over the issue of debt or inheritance should refer the dispute to a secular authority. The Imam replied that the parties should refer to a qualified person from among his followers. Similar advice occurs in the teachings of Imam Ja'far al-Sadiq (d. 765), another Shi'i imam, who, for instance, is reported to have said: 'the charity which Allah loves the most is the peace re-established between quarrelling parties.'

The same principles are found in Fatimid Law. The Fatimids, a Shi'a Ismaili dynasty, ruled Egypt from 969-1171. These principles of negotiated settlement, known as 'sulh' permeate the family law statutes of most Muslim countries, from Morocco to Bangladesh which provide that the judge must first establish a panel to explore the possibilities of a reconciliation.

As in other sectors of human endeavour, such as education and economics, so also in the sector of justice and dispute resolution, institutions and methodologies have evolved over time to serve the needs of successive generations of Muslims."

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