Mediation in Islamic Law and Its Parallels with Contemporary ADR Mechanisms

Abstract

This paper will examine what is meant by mediation under the Islamic law and how it can be compared to the modern-day Alternative Dispute Resolution (ADR) systems. Although contemporary ADR focuses on non-partisanship, confidentiality and party autonomy, Islamic mediation (sulh) is focused on reconciliation, moral duty and maintenance of community harmony. The paper examines the theological basis of sulh in the Quran and the Hadith, the mediator (hakam and muslih) and the focus on forgiveness and justice.

The paper, in a comparative analysis, comes up with areas of convergence and divergence between Islamic and modern mediation specifically in regard to the neutrality of the mediator, enforceability of the agreements and the ethical grounds. The case studies of Pakistan, Malaysia and the United Arab Emirates demonstrate different methods of introducing Islamic reconciliation practices into the statutory ADR systems. These cases prove the feasibility of the hybrid models, which integrate Shariah-based principles and procedural-based safeguards that are based on the contemporary law.

The paper also addresses the difficulties of harmonizing Islamic jurisprudence and secular ADR norms, particularly concerning such aspects as enforceability and institutional recognition as well as outlining cross-learning opportunities. The paper claim that an integration of the traditions can help to diversify the world in terms of ADR by placing Islamic mediation in the wider context of ADR. The existence of such hybrid modalities can help increase justice-accessibility in Muslim-majority societies, as well as add further ethically-grounded options to the international ADR portfolio.

Keywords: Mediation, Sulh, Islamic Law, Alternative Dispute Resolution (ADR), Comparative Legal Studies, Access to Justice, Hybrid Dispute Resolution Models