Alternative dispute resolution: the conventional and Shari'ah perspective

Ali Mohamed, Ashgar Ali and Ahmad, Muhamad Hassan (2022) Alternative dispute resolution: the conventional and Shari'ah perspective. In: Shari’ah and Common Law: The Challenge of Harmonisation. De Gruyter, Berlin, Germany, pp. 225-238. ISBN 978-3-11-076668-4

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Abstract

Disputes and conflicts are common to any organisation and may arise between and among staff, customers, and suppliers, between and across organisational units, departments, and even between countries. In an organisation, any unresolved conflict may have a significant negative impact on the commitment to the organisation and/or productivity, among others. Likewise, international disputes, if not addressed immediately, may escalate into war with severe loss of lives and damage to properties as the world is currently witnessing in Ukraine. Early recognition of conflict and an effective resolution process can lead to unity by addressing concerns or issues rather than suppressing them, getting people to talk to solve the problem, and above all, enabling people to be part of a team that cares. It promotes, inter alia, compromise or collaboration as people learn how to work harmoniously, develop creative solutions to problems and reach outcomes that mutually benefit those involved. Unfortunately, however, human conflicts or disputes are commonly referred to and adjudication in the courts. The undue delay in the settlement of disputes in courts which is common in many common law countries including Malaysia has seen an increase in the backlog of cases. As efforts to eliminate the backlog of cases are not showing positive results, the Malaysian judiciary has time and again proposed Alternative Dispute Resolution (ADR) as a mode of dispute settlement of civil and criminal matters, making court appearances as the last resort. It is worthwhile noting that in Malaysia, the ordinary courts of law administer justice according to common law precedents and statutes based on the fundamental principles derived from English law. The process of litigation is based on the adversarial process which was inherited from the common law and the English legal procedure. In this system, the parties, through their advocate, generally control the course of the trial where they are given the freedom to present their case and set forth their points of view. In fact, before the case may be set down for trial, the parties are required to comply with the stringent civil and criminal procedural rules of the court, for example, in a civil dispute, the requirement of filing pleadings and other originating documents, service of documents, ‘discovery’, ‘interrogation’ and pre-trial case management, among other. During the hearing of the case, which is normally held in open court, the parties may raise preliminary objections. Upon determination of the preliminary objection, the case may proceed for a full hearing with the parties adducing evidence and the examination of witnesses. Thereafter, the parties would be required to make a submission of their case. The presiding judge merely adjudicates the pleadings and evidence produced by the parties. In order to ascertain the truth, the judge would thoroughly elucidate the facts and issue of the case at hand and thereafter, make a decision that attains a reasonable degree of certainty. The judge acts as an impartial referee and may only ask questions to witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep the rules laid down by the law; to exclude irrelevancies and discourage repetition; to make sure that by wise intervention he follows the points that the advocates are making and to assess their worth, and at the end to make up his mind where the truth lies. While admitting that the enforcement of the above processes will ensure, inter alia, that the decision arrived at is fair and based on justifiable reasons, what needs to be emphasised herein is that such a process would certainly consume substantial time and costs. Many of the problems associated with the process of litigation in Malaysia are common to the adversarial process. Litigation in the courts is costly, time-consuming with unpredictable outcomes and above all, it has the potential to damage irreparably the relationships between the parties. The presiding judge will then deliver his written grounds of judgment. An aggrieved party may appeal against the decision of the trial court to the superior courts. It must be added that the disposal of cases vides the traditional litigation approach would not help in reducing the backlog of cases, even if there is an increase in the number of judges and courtrooms. This is because of the ever-increasing volume of cases filed in the courts annually. In fact, there are many disputes that could be resolved outside the framework of conventional litigation using the ADR mechanisms such as mediation and conciliation. Hence, this chapter discusses the conventional as well as Islamic ADR mechanisms in practice, and identify further the similarities as well as differences of ADR mechanisms between the two systems.

Item Type:	Book Chapter
Uncontrolled Keywords:	Alternative Dispute Resolution, Common Law, Shariah, Harmonisation
Subjects:	BPK Islamic law. Shari'ah. Fiqh > BPK36 Islamic law (General) K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User:	Dr. Muhamad Hassan Ahmad
Date Deposited:	09 Mar 2023 17:19
Last Modified:	09 Mar 2023 17:31
URI:	http://irep.iium.edu.my/id/eprint/103906

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