Concept of Mediation in Islamic Jurisprudence Introduction: As humans are social beings, disputes among them are inevitable. Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) From time to time differences arise on various questions between the people living together. Historical and personal experience shows that no society has ever existed, between the individuals or the social organizations of which there have never been any differences. Such differences have always existed in all societies from the primitive and semi-barbaric to the most advanced and civilized. Arbitration in Islam By Ayat. Muhammed Beheshti Conflict results from competition between at least two parties. A party may be a person, a family, a lineage, or a whole community; or it may be a class of ideas, a political organization, a tribe, or a religion. Conflict is occasioned by incompatible desires or aims and by its duration may be distinguished from strife or angry disputes arising from momentary aggravation. Laura Nader, "Conflict: Anthropological Aspects," in David L. Sills, ed. International Encyclopedia of the Social Sciences, Vol. 3 and 4 (New York: The MacMillan Co. and The Free Press, 1968), p. 236. Mediation is one of the skills used in conflict resolution. The mediator confronts two basic tasks when involved in settling a dispute. First, he or she has to encourage people to negotiate in such a way that there is an equitable outcome. Second, the mediator has to be completely neutral and place the expertise and power of decision-making in the hands of the conflicting individuals or groups themselves. Islamic Mediation Techniques for Middle East Conflicts By George E. Irani Mediation is principally aimed at exploring options for settlement, and to facilitate negotiations between the parties for amicable settlement of the dispute. As it is generally known, mediation is an effective and affordable complement to litigation and ensures speedy settlement of disputes. It is an excellent tool for the resolution of conflicts and for solutions that are invested in the parties who take part in the mediation. Mediation/Conciliation in the Malaysian Courts: With Emphasis on Settlement of Labour Disputes by Dato’ Tan Yeak Hui, Chairman, Industrial Court of Malaysia & Ashgar Ali Ali Mohamed , Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM) In 1893, two Indian Muslim businessmen in South Africa had a major commercial dispute. One of them wrote to their head office in Porbander in India and asked them to send a Vakil, knowledgeable in English, so that he could be a go-between themselves (the Indian merchants) and their European lawyers in South Africa. The Porbander office looked around and found a young, recently trained, Gujarati barrister by the name of Mohandas Karamchand Gandhi, who agreed to go to South Africa on contract for one year, but actually stayed for 21 years. He managed to settle the case out of court. No doubt, he drew from a tradition that goes back thousands of years - the Lok Adalat system in India, from which he, himself, hailed as did his two clients. His clients found resonance in their culture but also in the teachings of their faith, in the Holy Qur’an, which extols the virtues of forgiveness and negotiated settlement. Keshavajee, M.M 2002, ‘Alternative Dispute Resolution: Its Resonance in Muslim Thought and Future Directions’, Islam introduced the rule of law to solve disputes and ensure the smooth running of our worldly affairs, and it has encouraged and rewarded peaceful dispute and conflict settlement. In addition to texts in the Holy Qur’an, the Sunnah of Rasullulah (SAW), his Companions and their successors, Muslim jurists and administrators have consistently supported peaceful conflict settlement: within the Muslim community; between Muslim and non Muslim communities; and between non Muslim communities. Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) Islam has its own view as to the solution of the social problems. Some people think that they can be solved either by framing a new law or by changing the existing one. But Islam realises that a law has its own limits. It can be effective only within the range of the dry contractual relations. Mediation has a prominent place in Islamic law. Ayla Karmali, The Influence of Sharia Norms of Dispute Settlement and International Law: The International Court of Justice, Room for Accomadation? v. 75 309 The International Journal of Arbitration, Mediation and Dispute Management 317-319 (August 2009). Islamic process prioritizes relational issues, such as restoring harmony and solidarity and restoring the dignity and prestige of individuals and groups. Although “magnanimous gestures of absolution are encouraged, the outcome of the process must nonetheless reflect standards of ‘rightness’ and just compensation”. Irani, George and Funk, Nathan C. 2000. ‘Rituals of Reconciliation – Arab-Islamic Perspectives’, KROC Institute Occasional Paper, August, pp.19-21. Muslihun (those who help negotiate compromise and reconciliation) were regular features of the court. Often, litigants reported to the court that Muslihun had negotiated sulh between them, indicating that a compromise had been accomplished away from the Court. R. Jennings in Kadi Courts and legal procedures in the 17th century Ottoman Keysari If a dispute arises between two parties, the muslihun (dispute resolver) is obliged to persuade the parties to settle it within the community’s own provisions for mediation, and ensure its settlement in the fairest manner possible even it if hurts either of them personally. For the Qur’an says: O believers, be you securers of justice, witnesses of Allah, even though it be against yourselves, and your parents and kinsmen, whether the man be rich or poor. Hazrat ‘Ali b. Abi Talib, the fourth caliph of Islam and the first Shi‘a 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. Role of Religion in Conflict Resolution: One of the most important findings of cross-cultural conflict resolution research is that religion is a perennial and perhaps inevitable factor in both conflict and conflict resolution. Religion, after all, is a powerful constituent of cultural norms and values, and because it addresses the most profound existential issues of human life (e.g., freedom and inevitability, fear and faith, security and insecurity, right and wrong, sacred and profane), religion is deeply implicated in individual and social conceptions of peace. Said, Abdul Aziz and Funk, Nathan C., ‘The Role of Faith in Cross-Cultural Conflict Resolution’, available at http://www.gmu.edu/ academic/pcs/ASNC83PCS.htm accessed 07 May 2003 at p.1 Dispute management techniques such as mediation is not a modern phenomena, but instead a concept which permeates the Bible and Qur’an. Behrens, James 2003, ‘Church Dispute Mediation’, Australasian Dispute Resolution Journal, Vol.14, p.29. Islam has a number of similarities with oriental cultures, which differ from Western cultures. Some of these similarities include the structuring of relationships, managing disputes, and the prominence of social consensus, moral persuasion and attaining balance in human relations. In contrast, there is an emphasis in Western culture upon precision in documentation and the application of principles of legality that govern the structuring of relationships. In addition, there is a tendency to emphasise a more adversarial approach to resolving disputes, and to define personal problems and social troubles in terms of legal rights and obligations. These contrast with non-Western values, where there is a preference for ‘friendly negotiations or consultation’ as opposed to litigation. An Islamic Perspective by Hyder Gulam, Barrister and Solicitor and RAAF Legal Officer. Conflict Resolution in Islam: The term Islam, a verbal noun, itself implies, "the act of submitting one's self" to the will of God as involving the performance of specified duties, i.e., compliance. The word has in it the further idea of resignation to the will of God. An Introduction to the study of Islam with special reference to India by Sevan Jones Islam defines and regulates the relationship between man and God. That relationship, together with man's duties to God, is clearly set out in the Qur'an and has been further elaborated and clarified in the Sunna. However, Islam also articulates and regulates man's relationship with his fellow men both individually and collectively. It must therefore also comprehend a legal and ethical system, as well as principles of social behaviour. Within the context of dispute resolution, Islam provides general principles and an authoritative set of rules and regulations. It both guides and defines, and provides the environment for dispute resolution. Johnston, K., Camelino, G. and Rizzo, R. 2000, ‘A Return to “Traditional” Dispute Resolution: An Examination of Religious Dispute Resolution Systems’, available at http://www.cfcj-fcjc.org/full-text/traditional.htm , p.9. It Differs From Western Approach: The Western approach to conflict resolution prioritizes problems to be abstracted and resolved; Islamic approaches bear a resemblance to other non-Western approaches insofar as they frame conflicts as matters of communal and not just individual concern, and highlight the importance of repairing and maintaining social relationships. Muslim approaches to conflict resolution draw on religious values, social networks, rituals of reconciliation Irani, George and Funk, Nathan C. 2000, ‘Rituals of Reconciliation: Arab-Islamic Perspectives’, KROC Institute Occasional Paper, August. and historical practices of communal and inter-communal coexistence. Strong emphasis is placed on relationships between personal and group identity, between individual and collective responsibility for wrongdoings, and between attentiveness to ‘face’-related issues (public status, shame, and reputation for generosity) and the achievement of restorative justice within a context of continuing relationship. Said, Abdul Aziz and Funk, Nathan C., ‘The Role of Faith in Cross-Cultural Conflict Resolution’, available at http://www.gmu.edu/ academic/pcs/ASNC83PCS.htm, p.7. While Western mediators were expected to be formally certified professionals who provided their services as neutral, unaffiliated outsiders, in the Islamic approach, the preferred ‘third party’ was an unbiased insider with ongoing connections to the disputants as well as a strong sense of the common good, and standing within the community, for example age, experience, status, and leadership. Irani, George and Funk, Nathan C. 2000. ‘Rituals of Reconciliation – Arab-Islamic Perspectives’, KROC Institute Occasional Paper, August, pp.19-21. Sources of Islamic Law: The main source of Islamic law (Shariah) is the Qu'ran which is the embodiment of the Divine word that was revealed in stages to Prophet Muhammad (Peace Be Upon Him – pbuh) by the Angel Gabriel. The second source is the Sunna of the Prophet –a record of all of Prophet Muhammad's (pbuh) acts and sayings, as well as acts performed by others that were not opposed by him. The third source is the ‘Ijma’. This term can be translated as ‘consensus’. The fourth legal source is Qiyas – ‘analogy’. In Islamic law, these primary sources are complemented by secondary sources, such as ‘custom’. An Islamic Perspective by Hyder Gulam, Barrister and Solicitor and RAAF Legal Officer. Sharia Law: The word Shari’a appears in the Qur’an first to mean “path” or “way.” The verb shari’a means, “to show, to recommend.” The term Shari’a has also been used to mean legal prescription. In Islam, law and religion are inseparable; both are considered the expressions of God’s will and justice. The Shari’a deals with Moslem life according to a set of revelations transmitted to the Prophet Mohammed by Allah (God). Islamic law, with its traditions, provides the believers with the right Shari’a (“path”); the Shari’a governs relations between men and between man and God. It is therefore a divine law made and transmitted by Qur’an scholars or “Ulama” or “Fuqaha.” Its four principal sources are the Qur’an and the Sunna, which are primary, and the Ijma (Consensus), and Qiyas (reasoning by analogy), which are secondary. There are other sources of less importance such as istihsan, equity or juristic preference; istishab, presumption of continuity (in juristic reasoning); istislah or maslaha (opinion based on public interest); darura (necessity); and urf (custom). During the earlier days arbitration did not have any jurisdictional nature and it was close to conciliation. Islamic Law used the word "Hakam" to classify different meanings. The word refers in its strict sense to a person who is 'authorized' to undertake a specific mission. Accordingly, the word can be used in its broad sense to refer to an authorized person to dispose of rights, to settle differences between the disputants by suggesting settlement or helping them to reach it, or by issuing a binding decision to settle their dispute. Social Duty to Resolve the Differences: Under Islamic law, ‘the purpose of sulh (compromise, settlement or agreement between parties to a dispute) is to end conflict and hostility among believers so that they may conduct their relationships in peace and amity… In Islamic law sulh is a form of contract, legally binding on both the individual and community levels’. Iqbal, Walid 2001, ‘Dialogue and the Practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1035. Islamic system of resolving disputes places an emphasis on duty to the community. The good of the community is far more important than that of the individual. The concept of self includes others. Relationships are governed by notions of mutual respect, interdependence, harmony, reciprocity and holism, as opposed to individualism, confrontation and competition. Thirgood, Russell 1999, ‘Dispute Resolution Chinese Style – The Influences’, Australasian Dispute Resolution Journal, November, p.273. According to a Prophetic tradition, the reward for bringing about reconciliation between quarrelling groups is equal to that of prayer. This ethic is highly commended in Hazrat ‘Ali’s exhortations: Do not separate yourself from your brother unless you have exhausted every approach in trying to put things right with him… Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him… Seek reconciliation with your brother, even if he throws dust at you. The Sayings and Wisdom of Imam Ali, ed. S. F. Haeri, England, Muhammadi Trust of Great Britain & Northern Ireland.The Institute of Ismaili Studies Any differences which may arise between individuals or social organizations should be settled as early as possible, for their continuance, whether they are due to any willful transgression or mere misunderstanding, always adds to the conflict between the parties concerned and culminates in ugly events or at least perpetuates some sort of hostility and malice between them. Anyway, to make effort to settle the differences is a social duty. The Qur’an urges the Muslims to try to adjust any disputes which may arise between them. “Have fear of Allah and resolve your differences”. (Surah al-Anfal, 8:1) . Administration of Justice in Islam In the social system of Islam utmost importance has been given to arbitration, to an arbiter and to their role in the security of society. Islam considers it to be a part of faith to refer a dispute to a competent arbiter. A person who has a legal dispute should try to settle it by negotiation, and if a result is not obtained this way, he should refer it to an arbiter, competent in accordance with Islamic standards. Whatever judgment is given by the arbiter, should be accepted unconditionally. Arbitration in Islam By Ayat. Muhammed Beheshti In this respect the Qur’an says: “By your Lord! (the fact is) that they will not be true believers until they make you judge in what is in dispute between them and then do not find in themselves any dislike of what you decide, and submit (to your judgement) without reservation “. (Surah al-Nisa, 4:65). In Islam, governance of the polity requires scrupulous adherence to the principles of justice and equity. In the words of Hazrat ‘Ali, the person who is chosen to dispense justice or decide matters should be one who is full of learning, clemency and piety, who will not be disturbed by disputes, who will not be angered by opposing parties, who will not be exasperated by the faltering speech of the stammerer… who will not fall a prey to temptation nor to fulsome praise. Al-Qadi al-Numan, 1991, Da‘aim al-Islam, v. 1 and 2. ed. AAA Fyzee, Dar al-Adwa, Beirut,.The Institute of Ismaili Studies Definitions of Important Words: Conciliation in Islamic Law is a means of amicable dispute settlement, whereas mediation is one of the means of amicable settlement, and arbitration is another one. In Islamic law, peaceful conflict settlement is to be achieved either by means of conciliation (Sulh) or arbitration (Tahkim) or mediation (Wasaata). Al-Jurjani in his “Taarifat” defines Sulh as: “An accord to end a dispute". The Ottoman Code, "Majalla" defines "Sulh" in Article 1531 as: “A contract removing a dispute by consent. And it becomes a concluded contract by offer and acceptance". Sulh is also defined as: “An accord between two parties or more to resolve a specific dispute by ending its causes” Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) ‘Wassatah’ is the common term for mediation, and is used in Islamic law. Al-Jahshiary (331A.H-943 A.D) in his book ‘kitab al-wuzaraa’ (The Book of Ministers), has used ‘tawasut’ in the case of the mediation of Muhammad Ibn Muslim to end the hardship of land tax (kharaaj) payers, and also the Mediation of Yahya between a man and the Abbasside Khalifah Harun al-Rashid (198 A.H- 814 A.D) Al-Jahshiyari. Kitab al-wuzaraa, p142& 187.. Nevertheless the common word for mediation in Islamic law is (Al-Mashyu Bayna Al-Mutanaziinah); ‘walking between the disputants’. Alshafaa, Al-jaryu and Husnu Al-Sifara are also terms used for mediation. As for the definition of mediation (wassatah), it is a benevolent and non binding procedure to end a dispute. It is characterized by one or more persons intervening in a dispute either of their own initiative or at the request of one of the parties. The independent mediator must then seek to achieve an amicable settlement by proposing solutions to the parties. Fathi Kemicha.The Approach to Mediation in the Arab World, paper presented in the international conference of Mediation Geneva Switzerland 1996. Quranic Verses: The Holy Qur’an lauds all type of peaceful conflict settlement as long as they do not contravene Islamic teachings. The Prophet practiced this directive and conciliated his Companions, and accepted mediation between Muslims and non Muslims. His Companions have done the same in their time of leadership. Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) The holy Quran contains several verses specifically advocating mediation. e.g. Quran 4:35, 59, 65, 49: 9-10. The Qur'an is a very important source to understand modes of conflict control and reconciliation in Arab-Islamic societies. The holy book of Islam calls for equity in cases of revenge and for forgiveness in cases of apology and "remission." Islamic Mediation Techniques for Middle East Conflicts By George E. Irani Settlement of disputes out-of-court is highly commended in Islam. There are many Qur’anic verses and the traditions of Prophet (peace be on him) on the adoption of conciliation (Sulh) in the settlement of disputes. Mediation/Conciliation in the Malaysian Courts: With Emphasis on Settlement of Labour Disputes by Dato’ Tan Yeak Hui, Chairman, Industrial Court of Malaysia & Ashgar Ali Ali Mohamed , Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM) ; Khaled Abou el-Fadl says that ‘sulh’ means conciliation and settlement. It stems from the Arabic islah, meaning to make good, proper, right, to reconcile and to settle. As such, reconciliation is a normative good in the Quran. The Holy Qur'an, in several places, refers to the principle of resolving disputes amicably, calling on the parties to a conflict to forgive; for to forgive elevates a person to eternal nobility and brings to the forgiver greater spiritual benefits. According to Khaled Abou el-Fadl, the Quran advocates conflict resolution in several contexts. Verse 4:128 focuses on “amicable solutions” to marital problems. Other verses look at reaching agreements and settlements regarding inheritance, personal injury or disputes between two Muslims. Additionally, the Quran encourages arbitration in several contexts. Allah (SWT) says in Surah Al-Maidah Verse 2 “(H)elp ye one another in righteousness and piety. But help ye not one another in sin and rancour” (Al-Maidah: 2) His Messenger (SAWS) said: “The best of you in Allah’s eyes are those who are more beneficial to others and amongst the best deeds in Allah’s eyes are: creating happiness in the heart of a Muslim, or paying his dept, or satisfying his hunger”. “And if two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other, then fight ye (all) against the one that transgresses until it complies with the Command of Allah; but if it complies, then make peace between them with justice, and be fair: for Allah loves those who are fair (and just). (Al-Hujurat: 9). "Oh believers! Obey God and obey the Prophet and those among you who are in authority, and if you have a dispute over anything refer it to God and the Prophet if you believe in God and the last day. That is the best and fairest determination."Qur'an IV:59. First chapter of the Qur'an describes the extent and limits of punishment (qisas) and retribution: O ye who believe! The law of equality Is prescribed to you In cases of murder: The free for the free, The slave for the slave, The woman for the woman. But if any remission Is made by the brother Of the slain, then grant Any reasonable demand, And compensate him With handsome gratitude. This is a concession And a Mercy From your Lord Surah 2:178 in The Holy Qur'an, Text, Translation and Commentary, Abdullah Yusuf 'Ali, New Revised Edition (Brentwood, MD: Amana Corporation, 1989). The inspiration for the conciliation and mediation of the dispute among the Muslims 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. Arbitration and Mediation in the Shi‘a Imami Ismaili Muslim Community by Mr Mohamed Keshavjee For example, in the Qur’an, Allah (swt) proclaimed; “If two parties among the believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond the bounds against another, than fight ye (all) against the one that transgresses until it complies with the command of Allah; but if it complies, then make peace (Sulh) between them with justice, and be fair: For Allah loves those who are fair (and just). The believers are but a single brotherhood: so make peace and reconciliation (Sulh) between your two (contending) brothers; and fear Allah, that ye may receive mercy”(Surah Al-Huju’rat (49), verses 9 and 10). The Qur’an says: If you fear a breach Between them twain [i.e. husband and wife] Appoint [two] arbiters, One from his family, And the other from hers; If they wish for peace, Allah will cause Their conciliation: For Allah hath full knowledge, And is acquainted With all things. Qur’an 4:39 In another ayat, the Qur’an says: Allah doth command you To render back your Trusts To those to whom they are due; And when ye judge Between man and man, That ye judge with justice: Verily how excellent Is the teaching which He giveth you! For Allah is He who heareth And seeth all things. Qur’an 4:31 Mediation by Prophet: The concept of reconciliation and harmony is also found in the traditions (sunna) of the Prophet Muhammad (Peace be upon him) 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. Prophet Mohammad (PBUH) had practice the mechanism of arbitration even before his call to prophet-hood and established it among the Muslims before his death. At the earliest time of the Holy prophet’s life time the Meccans had great admiration for his wisdom, intelligence and uprightness and in critical moment they would seek his advice and refer their dispute to his judgment and would gladly accept his decision, because of this charismatic attitude, referred to him as al amin. Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia by George Sayen The Prophet, during his time in Medina, often mediated and arbitrated the disputes between members of the community. A sunnah reports that the Prophet successfully mediated a dispute between a creditor and a debtor by suggesting that the creditor accept half the money owed to him if the debtor would immediately pay in full rather than in installments. Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 317.  The implementation of sulh by Prophet (peace be on him) could be seen in the case of the making of the Treaty of Hudaibiyah where it was narrated by Al-Bara Bin Azid that when Prophet (peace be on him) made the peace treaty with the people of Hudaibiyah, Ali Bin Abi Talib wrote on the document and stated in it ‘Muhammad, Allah’s Apostle’. The pagans asked not to write ‘Muhammad, Allah’s Apostle’, for if he is an apostle, they could not fight with him. Prophet (peace be on him) then asked Ali to obliterate the same, but Ali refused to do so, then the Prophet (peace be on him) himself erased and later made peace with them.” Sahih al-Bukhari, Vol 3, para 858 (English translation by Dr. Muhammad Muhsin Khan), (Lahore: Kazi Publications, 1986) at p. 536. The Madinah Constitution which was enacted by Prophet (peace be on him), included in it provisions on conciliation to settle any disputes emanating from the groups of people in Madinah. Based on ijma (consensus of opinion). Mediation/Conciliation in the Malaysian Courts: With Emphasis on Settlement of Labour Disputes by Dato’ Tan Yeak Hui, Chairman, Industrial Court of Malaysia & Ashgar Ali Ali Mohamed , Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM) The Prophet says: "Conciliation between Muslims is permissible, except for a conciliation that makes lawful unlawful and unlawful lawful". The prophet also says: “Intercede so you will be rewarded” Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) Bukhari's Sahih (an early collection of traditions) includes a report of a dispute between two landowners who used the same stream for irrigation. The plaintiff had the legal right to exclusive use of the stream. The Prophet nevertheless suggested a reconciliation whereby the defendant could have the use of any excess water not needed for irrigation of plaintiff's land. Only when the defendant refused this compromise solution did the prophet give judgment in accordance with plaintiff's legal right. Abu 'Abdullah Muhammad Ibn Isma'il Al-Bukhart, Sahih Al-Bukhar, bk. XLIX, no. 871 (M. Khan trans. 1979). Islamic Traditions: Numbers of instances of preference for conciliation are available in Islamic traditions and Islamic literatures. 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. In his book Compendium of Fatimid Law, the noted Shi‘i legal scholar, Dr A. A. A. Fyzee, quotes Imam ‘Ali from the Da‘a’im al-Islam, a work compiled by the foremost Fatimid jurist of the tenth century called al-Qadi al-Nu‘man (d. 974). He says that according to Imam ‘Ali, ‘The composing of differences between man is better than all manner of fasts and prayers.’ According to Richard Jennings, the Ottoman Kaiseri courts had functionaries known as muslihun, from the word sulh or sullah, who practiced negotiation. Often, these muslihun resolved disputes, and in the best tradition of Islamic philanthropy and compassion, did it anonymously, without seeking any credit, fame, or accolade. Arabic Tradition of Sulh: In his illuminating article “Islamic Mediation Techniques for Middle East Conflicts” Mr.George E. Irani narrates the application of the principle of mediation(sulh) by the tribes in Arabia. He says “Given the severity of life conditions in the desert, competing tribes long ago realized that sulh is a better alternative to endless cycles of vengeance. Each of the tribes then initiates a process of taking stock of its losses in human and material terms. The tribe with minimum losses compensates the tribe that suffered most, and so on. Tradition has it that stringent conditions are set to settle the tribal conflict definitively. The most famous of these conditions is that the parties in conflict pledge to forget everything that happened and initiate new and friendly relations. The consequences and effects of public sulh apply whether the guilty party was identified or was unknown at the time of the sulh. Private sulh takes place when both the crime and the guilty party are known. The parties may be of the same tribe or from different tribes. The purpose of private sulh is to make sure that revenge will not take place against the family of the perpetrator. Regarding the final outcome of sulh, there are two types: total sulh and partial or conditional sulh. The former type ends all kinds of conflict between the two parties, who thenceforth decide not to hold any grudges against each other. The latter type ends the conflict between the two parties according to conditions agreed upon during the settlement process.” Here is a brief sketch of how the ritual of settlement and reconciliation is used in the Middle East. Following a murder, the family of the murderer, in order to thwart any attempt at blood revenge, calls on a delegation of mediators comprised of village elders and notables, usually called muslihs or jaha (those who have gained the esteem of the community).The mediators initiate a process of fact-finding and questioning of the parties involved in the murder. As soon as the family of the guilty party calls for the mediators' intervention, a hodna (truce) is declared. The task of the muslihs or jaha is not to judge, punish or condemn the offending party, "but rather, to preserve the good names of both the families involved and to reaffirm the necessity of ongoing relationships within the community. The sulh ritual is not a zero-sum game.” Laurie E. King-Irani, "Rituals of Reconciliation and Processes of Empowerment in Post-War Lebanon," in I. William Zartman, ed. Traditional Cures for Modern Conflicts: African Conflict Medicine," (Boulder, CO: Lynne Rienner Publisher, 1999). To many practitioners of sulh and musalaha, the toughest cases to settle are usually those involving blood feuds. Sometimes, a blood price is paid to the family of the victim that usually involves an amount of money, diya, set by the mediators. The diya (blood money) or an exchange of goods (sometimes the exchange includes animals, food, etc.) substitutes for the exchange of death. The ritual process of sulh usually ends in a public ceremony of musalaha (reconciliation) performed in the village square. The families of both the victim and the guilty party line up on both sides of the road and exchange greetings and accept apologies, especially the aggrieved party. The ceremony includes four major stages: 1) the act of reconciliation itself, 2) the two parties shake hands under the supervision of the muslihs or jaha; 3) the family of the murderer visits the home of the victim to drink a cup of bitter coffee; and 4) the ritual concludes with a meal hosted by the family of the offender. The rituals vary in different places but the basic philosophy is based on sulh (settlement), musalaha (reconciliation), musafaha (hand-shaking), and mumalaha ("partaking of salt and bread," i.e. , breaking bread together). Elias J. Jabbour, SULHA: Palestinian Traditional Peacemaking Process (Shefar'Am, Israel: House of Hope Publications, 1996). Reason for Importance of Mediation: The biggest reason for the importance of mediation in Islamic law is Islam’s strong aversion to binding third-party dispute resolution that is, arbitration and litigation. There is a belief among Muslims that judges and arbitrators who make an incorrect decision as well as any person who benefits from that decision will receive severe punishment in the afterlife. Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 318.  Two sunnah are particularly illustrative. They attribute to the Prophet: “Of Judges there are three: One in heaven and two in the fire,” Coulson, A History of Islamic Law at 123. and also: “I am only a man and when you come before me it may happen that one of you might be more eloquent in his pleadings and that, as a result, I adjudicate in his favor according to his speech. If it so happens and I give an advantage to one of you by granting him a thing which belongs to one of his opponents, he had better not take it because I would be giving him a portion of hell.” Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 318. A well-known anecdote tells the story of one ‘Abd-Allah ibn-Faruk, who refused a judicial appointment in the city of Qairawan. He was persuaded to reconsider only when the city guards put him in chains and threatened to throw him from the mosque roof. Nevertheless, he was reduced to tears when approached by his first litigants and successfully persuaded them to reconcile rather than ask him to make a judgment in their case. Coulson, A History of Islamic Law at 123. Emphasis on Benefit of the Community: The Western approach to conflict resolution prioritizes problems to be abstracted and resolved; Islamic approaches bear a resemblance to other non-Western approaches insofar as they frame conflicts as matters of communal and not just individual concern, and highlight the importance of repairing and maintaining social relationships. Muslim approaches to conflict resolution draw on religious values, social networks, rituals of reconciliation and historical practices of communal and inter-communal coexistence. Strong emphasis is placed on relationships between personal and group identity, between individual and collective responsibility for wrongdoings, and between attentiveness to ‘face’-related issues (public status, shame, and reputation for generosity) and the achievement of restorative justice within a context of continuing relationship. Abdul Aziz and Funk, Nathan C., ‘The Role of Faith in Cross-Cultural Conflict Resolution’, available at http://www.gmu.edu/ academic/pcs/ASNC83PCS.htm accessed 07 May 2003, p.7. Under Islamic law, ‘the purpose of sulh (compromise, settlement or agreement between parties to a dispute) is to end conflict and hostility among believers so that they may conduct their relationships in peace and amity… In Islamic law sulh is a form of contract, legally binding on both the individual and community levels’. Iqbal, Walid 2001, ‘Dialogue and the Practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1035. The Islamic system of resolving disputes places an emphasis on duty to the community. The good of the community is far more important than that of the individual. The concept of self includes others. Relationships are governed by notions of mutual respect, interdependence, harmony, reciprocity and holism, as opposed to individualism, confrontation and competition. Thirgood, Russell 1999, ‘Dispute Resolution Chinese Style – The Influences’, Australasian Dispute Resolution Journal, November, p.273. Forms of Islamic Mediation: Islamic mediation itself commonly takes three forms. First, each conflicting party may select a “mediator” to effect an agreement in their stead. Essentially, this model allows for each side to employ a presumably more professional, clearheaded negotiator to reach an agreement. Although this kind of mediation is most common for marriage contracts, it is not unknown in commercial dispute resolution. Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 317. Second, conflicting parties may select a single mediator to engage in a more conventional mediation process by western standards. Traditionally, this kind of mediation was considered a judicial function and so Muslims tended to select judges as their mediators. However, the overriding reason for the predominance of judges in mediation was not their official position but rather their recognized ability to successfully resolve disputes. Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 319-320.  Third, conflicting parties may seek an opinion on their issue from a respected legal expert (mufti). After hearing a controversy, this expert engages in a process (ifta) of in-depth legal research to find all the applicable substantive legal rules on the subject. The muftiis then expected to present a report detailing their research and its application to the conflict. Although a mufti’s opinion is not legally binding, it has substantial weight in Islamic legal proceedings. Coulson, A History of Islamic Law at 142-143, 148.  Qualification of Mediators: Although very conservative Muslims may only accept a male Muslim mediator, the Quran says very little about a proper mediator’s qualifications, selection, or even the process by which he or she helps parties reach a solution. In practice, anyone of any method may be an Islamic mediator provided they are respected as such and do not offend Islamic legal and moral principles. Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 323. Qualities of Mediators: Soundness of arbitration and mediation mostly depends on the fitness of the arbiter. Islam attaches much importance to this. Sincerity, fairness and qualification are the core conditions of a mediator. It is evident from the letter written by the Commander of the Faithful, Imam Ali to Malik al Ashtar as under: “Select, as your chief judge from the people, one who is by far the best among them – one who is not obsessed with domestic worries, one who cannot be intimidated, one who does not err too often, one who does not turn back from the right path once he finds it, one who is not self-centered or avaricious, one who will not decide before knowing the full facts, one who will weigh with care every attendant doubt and pronounce a clear verdict. after taking everything into full consideration, one who will not grow restive over the arguments of advocates and who will examine with patience every new disclosure of fact and who will be strictly impartial in his decision, one whom flattery cannot mislead, one who does not exult over his position. But such people are scarce”. Allah says in the Holly Quran: “O ye who believe! stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to Piety: and fear Allah. For Allah is well-acquainted with all that ye do” (Al-Maidah: 9). He also says: “O ye who believe! stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do” (An-Nisaa: 135). The prophet (SAAS) says: “There are three kinds of judges: two are in the Fire and one in Paradise; the one in Paradise is the one who knew the truth and judged by it. The one who judged amongst people in his ignorance is in the Fire, and the one who knew the truth, but he deviated from it in his judgment, then he is in the Fire”. The mediator should be of good reputation and acceptable to both parties. The Holy Quran emphasizes, for instance in the issue of witnesses to contract formation, on reputation and acceptability. Guidelines for Islamic Mediators:       Those involved in Islamic dispute resolution must always bear certain issues in mind. Aspects of Islamic law can void mediated agreements or make them unappealing. To this end, an Islamic mediator should consider three major principles. First, Islamic law prohibits usury (riba), which generally occurs in any commercial transaction in which one or both parties receive interest. Closely linked to the concept of riba is the Islamic ban on gambling (gharar). This prohibition has been extended by analogy to ban contractual “uncertainty”. It has been used to expand the concept of riba so that it bans any commercial transaction in which a party’s consideration is uncertain as this could result in one party unexpectedly receiving something of greater value than what they gave in exchange. Coulson, A History of Islamic Law at 38-39. The Malikis, Hanbalis, and Shafi‘is hold that any contract involving riba orgharar is completely unenforceable. The only slightly more lenient Hanafis apply their doctrine of “severance” to riba and gharar contracts by which they are still enforceable less their usurious provisions. Coulson, A History of Islamic Law at 100. Moreover, the schools agree that riba and gharar are crimes punishable at a judge’s discretion and up to forty lashes, respectively. Lippman et al., Islamic Criminal Law and Procedure: an Introduction at 43. Second, the subject matter of a contract and thus, a mediation, must be lawful (halal) and wholesome (tahir). Essentially, the subject matter of a contract may not conflict with Islamic law or norms. Doi, Shariah: The Islamic Law at 358-359. Third, Islamic “law” is not always legally binding. In Islam, law exists in a dual system. Some laws set out obligations (wajb) and prohibitions (haram) while others recommend (mandub) and disapprove (makruh) behavior. While it would clearly be illegal to ignore laws which set out obligations and prohibitions, it is also unwise to ignore laws which recommend and disapprove behavior. There is a tendency within Islam to regard a wrongdoer’s punishment in the afterlife more seriously than any worldly legal sanction. See Karmali, The International Journal of Arbitration, Mediation and Dispute Management at 323-324. Conciliation in Family Disputes: Islam encourages conciliation in resolving family disputes which is evident from the following verses of the Holy Quran: “Should a woman apprehend ill treatment or indifference on the part of her husband, it shall be no sin on them to seek suitable reconciliation with each other; for reconciliation is best. People are prone towards covetousness. If you are benevolent towards each other and are mindful of your duty to Allah, surely Allah is well aware of that which you do.”(4:128). Should reconciliation through mutual consultation prove difficult, recourse should be had to counselors; as is said: “Should you apprehend a breach between husband and wife, then appoint an arbiter from among his people and an arbiter from among her people. If they desire reconciliation, Allah will bring about accord between husband and wife. Surely Allah is All Knowing, All Aware.” (4:35) If differences arise and, failing reconciliation, the husband vows abstinence from his wife, the situation must be resolved within four months: “For those who vow abstinence from their wives, the maximum period for making up their minds is four months; then if they revert towards conciliation, surely Allah is Most Forgiving, Ever Merciful; and if they decide upon divorce, Allah is All-Hearing, All-Knowing.” (2:226-227). Islam regards it necessary that in the case of the apprehension of breach and dissolution of family life, a family court consisting of two arbiters, one representing the husband and the other representing the wife, is constituted to arbitrate between them. The arbiters should do their utmost to settle the dispute between the husband and the wife and, if necessary, they should consult them for this purpose. They can dissolve the marriage only if they find that reconciliation is impossible. As far as practicable, the arbiters should be selected from among the relatives of the couple, provided suitable people are available among them. The Holy Qur'an says: "If you fear a breach between the two, appoint an arbiter from his relatives and another from hers. If they both desire compromise, Allah will afford harmony between them. Surely Allah is Ever-Knowing, Aware', (Surah an-Nisa, 4 : 35).  The author of the Kashshaf, explaining the word, 'arbiter' says that the person selected to arbitrate should be trustworthy, eloquent and capable of bringing about a reconciliation and doing justice to both the parties. He further says that it is preferable to select the arbiters from among the relatives of the couple because they are expected to know the causes of the dispute better and both the parties can talk to them freely and repose confidence in them.    Practises in Saudi Islamic Courts: The Saudi Islamic courts have a strong emphasis on reconciliation. Because of this, the system is less formal than the Western systems. Lawyers are only permitted in the absence of an actual party, but not as counsel, or an officer of the court. The system relies on the Kadi (an Islamic judicial figure) as the proper person to protect the parties from any unfair practices and to guide them through the process of adjudication. Iqbal, Walid 2001, ‘Dialogue and the practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1040. In addition, the emphasis at a typical proceeding focuses on oral, rather than written proceedings. Settlement lies at the heart of dispute resolution in Saudi Arabia, “not as mere convenience but as a basic norm”. Iqbal, Walid 2001, ‘Dialogue and the practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1041. The Kadi in the Saudi legal system is not a mere adjudicator; the Kadi possesses great skill as a mediator and conciliator. For example if a Kadi believes that a settlement or compromise would yield a just outcome, he will aim – sometimes even forcefully – to persuade the parties before him to come to an agreement and settle their disputes amicably. Iqbal, Walid 2001, ‘Dialogue and the practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1041-42. Disputes Resolution in Malaysia: Hassan states that Islamic conflict resolution systems are growing in popularity and awareness in Malaysia as in other Islamic societies, as part of the growing phenomena of the application of Shariah Law. In the Malaysian situation, this has occurred nowhere more so than in the family context. While Malay society readily recognizes that disputes, particularly within the family context, are unavoidable, there are religious and cultural principles on how disputes should be managed. Malay Muslims hold a negative view of people who do not avoid or prevent a conflict from reaching a destructive stage. The emphasis is on disputes being resolved promptly and as smoothly as possible. This attitude towards disputes stems from a core belief held by most Malays that hostility and destructive behaviour can undermine both the family and community solidarity and undermine the central values of togetherness and happiness that have been forged by custom (adat) and Islam. The situation in Malaysia revolving around family disputes involves three distinct mechanisms: the marriage counselor, the district Kadi and the Shariah Court judge. Together these mechanisms constitute the formal apparatus of the Islamic dispute management system. The counselor, usually a female, although officially assigned to expedite communication between dissenting individuals, often suggests solutions to the disputants on how best to resolve their differences in the light of Islamic law or legal principles. The Kadi, who for all practical purposes is an arbitrator, at times forgoes his power to produce a decision single-handedly and instead assists the individuals involved to arrive at a consensus on the issues in the dispute. By doing so, the Kadi lends to arbitration the character of mediation. As for the Shariah Court judge, despite the formality and procedural rigour that epitomize court proceedings, the judge occasionally encourages litigants to work out compromises in the courtroom or the privacy of their own office. In other words, even what appears as an adjudicative decision produced at the end of a court hearing, is in actual fact a negotiated settlement, arrived at in a formal court setting that has assumed the character of mediation sessions. Therefore, there is a range of conflict resolution techniques that the counselor, Kadi and judge can resort to when handling intra-familial disputes in Malaysia. Hassan, Sharifah Saleha Syed and Cederroth, Sven 1998, Managing Marital Disputes in Malaysia: Islamic Mediators and Conflict Resolution in the Shariah Courts, Curzon Publishing, London, Canadian Muslims: Canadian Muslims are turning to Islamic dispute management principles to inform their intra-community conflicts. Muslims in Canada are setting up their own arbitration boards to allow them to govern themselves according to Islamic law on such issues as marriage and divorce. In this system, disputes would first go to a secular court that would turn them over to the Islamic arbitration boards for a ruling, and the ruling would then be subject to the approval of a secular court. Permitting alternative methods of resolving disputes in matters of family–personal law could provide Muslims with a “way of doing things that reflects fundamental aspects of their sense of justice”. McAteer, M. 1991, ‘Muslims seek jurisdiction over family law’, The Toronto Star, 30 May 1991 Limitations on Mediation: Mediation is not available in cases where the law is clear and explicit e.g. Rasullulah’s rejection of the mediation of Usamah Ibn Zaid, whose honorific was ‘the loved one of Allah's Messenger’, in the case of the Makhzumi women to avoid the punishment of theft. Rasulullah’s reply to the request of Usamah Ibn Zayed was stern: “Do you intercede regarding one of the punishments prescribed by Allah? He then stood up and addressed the people: “O people, those who have gone before you were destroyed, because if any one of high rank committed theft amongst them, they spared him; and if anyone of low rank committed theft, they inflicted the prescribed punishment upon him….” Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) Conclusion Islam is not just a religion. It is a civilization, and a way of life that is not only present in one Muslim country to another, but also in Muslim communities around the globe. Mazrui, Ali A. 1997, Islamic and Western Values, Foreign Affairs, Vol.76, No.5, Sept/Oct, pp.118-132. Mediation is very important in Islamic law and preferred to litigation and arbitration. In its paternalism, Islamic law seeks to avoid the possibility of a conflict resulting from an undesirable contract. In Islamic law, a mediator and their method are chosen based on respect and knowledge of the law. Finally, a mediator must always take relevant Islamic law into consideration, both that which is legally binding and that which is merely recommended. Commercial Mediation in Africa and Islamic Law by Nicholas Khoury Islam as an everlasting religion applicable for all mankind and suitable to all times and places has two important characteristics absorbing and solving all incidents that may encounter Muslims Ummah: the first on is comprehensiveness; and the second one is flexibility. Furthermore it is not a literal application of mediation in prophet’s era. As such all types of mediation and all procedures applied by the mediators to end a dispute and reach a fair settlement of conflicts are welcomed as long they do not contravene Islamic principles and fundamentals. Islam did not merely encouraged peaceful conflict settlement, but introduced a systematic and time-space consideration approach to end conflicts, however, Islam while preserving the openness of Shari’ah law to the impact of time and space dimension, also protects it from the influence of contradictory norms and laws of non Islamic provenance, or from the renunciation of fundamental of Islamic Law under the justification of time and space factor, or the pressure of globalization and international law. Foundation of mediation in Islamic law and its contemporary application by Dr Said Bouheraoua, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Law International Islamic University Malaysia (IIUM) It is this concept of Islam which has been widely practiced in the Islamic world all along has percolated to the western continent and also India for effective disputes resolution and to maintain peace in the society. So, basically, Islam permeates reconciliation and settlement of disputes outside an adversarial, formalised context. These concepts are not abstract. They are lived each day by different Muslim communities from Indonesia in the East to Morocco in the West, as well as being extant in diasporic communities in the Western world. “Taking Alternative Dispute Resolution To The Common Man” by Rishabh Sinha, Sarabjeet Singh  30