Chapter 6: Mediation, arbitration and Islamic alternative dispute resolution
In every society, as Galanter observes, most disputes are not settled in courts or formal state forums, but are resolved in variety of extra-judicial ways, including by negotiation, mediation and arbitration. This is certainly the case in Muslim societies, where there has been a long tradition of adjudication by a judge (qadi) co-existing and intersecting with a range of complementary dispute resolution processes. The rich and lengthy history of complementary dispute resolution in the Islamic world has led some writers to postulate that the Islamic dispute resolution processes influenced the birth of alternative dispute resolution (ADR) in the West, or that the Islamic model is one from which the West should learn. Similar to the focus on courts and judges as the primary dispute resolution forum in Western cultures, there has also been far greater focus and commentary in Muslim cultures on the Islamic judicial institution of the court (qada), and the role of the judge (qadi). Modern perspectives on the traditions of amicable settlement (sulh), either through mediation or conciliation, and arbitration (tahkim) are however evident and their contribution to Islamic justice is increasingly acknowledged. Othman explains that, while there is an assumption, corresponding with popular perceptions, that adjudication is the superior mechanism for dispute resolution in Islamic law, neither the Quran nor hadith stress the virtue or necessity for qada. Rather they ‘unambiguously uphold the values of conciliation, magnanimity and forbearance over exacting one’s legal rights’.
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