Mediation in marital discord in Islamic law: legislative foundation and contemporary application

Haneef, Sayed Sikandar Shah (2010) Mediation in marital discord in Islamic law: legislative foundation and contemporary application. In: IIUM Research, Innovation & Invention Exhibition (IRIIE 2010), 26 - 27 January 2010, Kuala Lumpur.

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Abstract

Mediation as a method of marriage confl ict resolution has recently emerged as one of the most workable institutionalized techniques in Western jurisdictions. In Islamic law, although ipso facto, it was given legislative recognition centuries ago under the principle of taḥkim; its potential as a viable reconciliation technique was somewhat obscured by juridical technicalities. Indisputably, mediation was the underlying ratio legis for the institution of ḥakam (arbitration). In practice, however, mediation was not the sole prerogative of the arbitration. It was instituted and carried out through numerous culturally specifi c methods, both formal and informal. In the Malaysian scene, mediation in family dispute is part of the ongoing daily job of Shari�ah lawyers, judges and offi cers in religious departments. However, critiques believe that neither the agents under traditional ḥakam nor Shari`ah practitioners of Shari`ah bodies have the necessary training and soft skills to act as eff ective go-betweens in resolving marital confl icts in the contemporary setting. Th e alternative, therefore, is to create a body such as a “Conciliatory Committee” using the pattern for a Western mediation model. Th us this paper, while agreeing with this idea, proposes an integrated method of doing this within the hybrid framework of both arbitration and modern mediation techniques consistent with Islamic legal methodology.

Item Type:	Conference or Workshop Item (Poster)
Additional Information:	3049/22686
Uncontrolled Keywords:	IRIIE 2010, mediation
Subjects:	H Social Sciences > HQ The family. Marriage. Woman > HQ503 The family. Marriage. Home
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Kulliyyah of Islamic Revealed Knowledge and Human Sciences Kulliyyah of Islamic Revealed Knowledge and Human Sciences > Department of Fiqh and Usul al-Fiqh
Depositing User:	Mrs. Wan Salwati Wan Salleh
Date Deposited:	20 Mar 2012 11:58
Last Modified:	20 Mar 2012 11:58
URI:	http://irep.iium.edu.my/id/eprint/22686

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