Before a couple experiencing conflict in their marriage decides to go forward with a divorce, there are a number of options they can consider to try to resolve their differences.
One of these is arbitration.
Arbitration: What is it?
Arbitration is a process where either a neutral third party or a panel of three people come to a decision about a given situation (in this conflict in marriage) after studying the facts and arguments presented by all sides.
This decision can be binding or non-binding. A person who decides on an issue is an arbitrator. S/he makes the decision for the individuals involved, instead of a judge.
Arbitration is different from mediation. In mediation, two parties who are in dispute come to a joint agreement to solve their disagreement.
On the other hand, in arbitration, the arbitrator makes a decision on what the parties have to do based on the information they give to him/ her.
Arbitration is considered an alternative to litigation for divorce or other family matters. It is considered useful where mediation has failed to resolve the dispute. People may also choose to have their cases decided by arbitration because it is often faster and not as expensive as a trial.
State laws vary, so those who want to resolve a dispute through arbitration should check with a lawyer before they go forward with this option.
Arbitration in the Muslim Community: Mixed Views on its Success
Abdalla Idris Ali, an Imam and scholar in Toronto, Canada, a member of the Islamic Society of North America’s (ISNA) executive body and a past president of the organization.
He supports the use of arbitration as a way for warring couples to avoid divorce.
“Normally when people get to a point where they are at the brink of divorce, there must be issues that must be settled between the two of them. If they arbitrate those issues and accept the arbitration on those issues, they might back down from the decision of divorce,” he says.
In the North American Muslim community, arbitration is rarely used, according to Shahina Siddiqui, executive director of the Islamic Social Services Association of the United States and Canada (ISSA).
She also says it is also more likely to be a last resort measure for couples on the verge of divorce. “When it (marital conflict) reaches the arbitration stage, or you have asked an arbitrator, usually it means that the couple is not planning to stay together,” she notes. Siddiqui has been a counselor in the Winnipeg, Canada Muslim community for over 15 years.
“Arbitration would come into how the property is divided, who will take the children, that kind of stuff because you cannot really arbitrate a relationship,” she adds. “Usually for marriage conflicts I would recommend mediation, not arbitration.”
Part of the problem is that the contract that results from the arbitration is not respected. Couples can, after undergoing the process of arbitration, draft a contract stipulating terms and conditions that each partner will respect. They can even get it notarized. However, it is usually either appealed or broken.
“At the end of the day, unless there is some kind of social pressure forcing the parties to abide by it, what ends up happening is one of the parties will take it to court either to enforce the decision or appeal the decision because they don’t agree with it,” says Faisal Kutty, a lawyer based in Toronto, Canada.
Zafar Hasan, a Chicago-based corporate lawyer notes that another problem with arbitration is that if the contract contradicts local laws, it cannot be enforced, even if stated in a contract which is notarized.
As well, because arbitration means that one party did not agree with the decision, it will not be easily enforced.
On the other hand, Hasan stresses that mediation is a better option for Muslims seeking the resolution of a conflict and seeking enforcement of their contracts through courts. Courts are more likely to make sure conditions in a contract that resulted from mediation are respected because the two parties both agreed to the conditions. It was not imposed on either of them.