When a dispute arises between a couple it is natural that they would want it resolved as speedily, cheaply and without much fuss as possible. Generally, they would also like to keep it as private as possible and involve as few others in the process of resolution. Ironically, in such situations, the first forum that springs to mind is a court of law. Threats of legal action fly to and fro. Often these threats come from family of the parties, while the couple themselves would prefer to keep it as in house as they can. However, as has become patently clear over the last few years, a court of law is in fact the last place to settle a marital disagreement. Lawyers will tell you that the wait for a High Court date can be as long as 4 years and that 1 day in such a court can cost between R20 000 and R80 000. For these and other more compelling reasons, couples should first consider other forms of dispute resolution.
It is well recognised that Alternative Dispute Resolution (ADR) methods provide conflicting parties with a more efficient, more cost effective and painless means of arriving at a settlement. Such methods currently in use are Negotiation, Mediation, Adjudication (not by a court) and Arbitration. These pre-litigation alternatives have been successfully employed in international and high-end business dispute resolution for many years. More recently they have also been written into South African labour legislation, and executed by the CCMA and its Bargaining Council agents with thriving success. Therefore it is rather surprising that they are not more readily and open-heartedly put to use in marital disputes where, clearly, they would be right at home. In this article the well known ADR forms of Negotiation, Mediation and Arbitration will be discussed. Discussing Adjudication however will be unnecessary as it does not find application in marital disputes.
Negotiation is nothing fancy or technical and most disputing couples go through this step without even realising that they are in fact negotiating. The arguments and fighting should however not be confused for negotiation. Negotiation takes place when the couple has come to a point that they accept that they have a dispute about each other’s rights and duties and that these should be properly demarcated and given effect to. They may at this stage involve a third person to help in the process, but often not even at this stage.
Mediation on the other hand will involve a third person, a neutral person, a person with knowledge and experience in dispute resolution. Maybe even knowledge of the law and its requirements. Mostly, however, the skill and experience in being able to make one party to a dispute see the other’s point of view. The mediator will not make a judgement. He will simply assist the parties to come to a settlement. He will not even propose settlement terms. The terms of the settlement must come from the parties themselves.
The most widespread form of mediation currently in use in South Africa takes place in labour dispute resolution. The Labour Relations Act empowers the CCMA to provide this facility to the labour sector and is commonly known as conciliation. Similar to the Labour legislation so too the Muslim Marriages Bill wants to introduce compulsory mediation for Muslim couples facing a dispute.
What is envisaged is that before an aggrieved spouse wants to institute legal action, that spouse must first allow the dispute to be resolved through mediation. The main objective of the mediator will be to allow the parties to find a resolution by themselves. He will do this by helping them to look at the matter from the other party’s point of view and by forewarning them of the consequences of non-resolution. He may even go to the point of either alluding to or clearly spelling out to the couple what the outcome would be if the matter goes further on to Arbitration or Adjudication (by a court).
A successful outcome to mediation will result in an agreement between the couple, which is commonly referred to as a settlement agreement. The mediator will capture this agreement in a document and it will be legally binding just as any other contract. Such an agreement will obviously bring the mediation to a close as the dispute will have been resolved.
However, in the event that the mediation is not resolved, the mediator will declare it so by issuing a certificate of non-resolution. The Bill envisages that if the party who applied for the mediation wishes to continue pursuing a resolution, that party must first subject the dispute to be resolved by Arbitration before it can be placed before a court.
Unlike mediation, where the parties have more control over the outcome, arbitration is more structured and subject to strict rules of procedure. The arbitrator is completely in control of the proceedings and will ensure that the outcome is fair and in accordance with the law. The ruling that is made by the arbitrator is called an award and it is final and binding on both parties. Current arbitration legislation does not allow for an award to be appealed to a court however any one of the parties may apply for a review of the award. A review is a procedure that focuses more on the conduct of the arbitrator in coming to the decision than at the award itself.
The view that an arbitration award should not be final and that the parties should have the right to an appeal is not without merit. It should however be keep in mind that just as an arbitration award can be adverse so too can a court judgement be. The idea is to ensure that the procedure is fair, quick and inexpensive and that the outcome provides a re-balancing of the rights and obligations of the parties. It should also avoid the situation where the parties exhaust the entire estate that they are fighting over in legal fees. So by the time they have completed all the appeals they have nothing left anymore.
Even though Mediation and Arbitration is not commonly practiced in family disputes, the Muslim community has a long standing and proud tradition of voluntary non-binding mediation and arbitration practice. These services have been provided to Muslims by the Ulama and Ulama Judicial Institutes for many, many years. Over the last few years some Judicial Institutes have even included the expertise of lawyers and advocates on the Ulama Arbitration tribunal.
The main difference in these institutes providing these services under the Muslim Marriages Bill is that the mediation will be compulsory and not only will the arbitration be compulsory but its outcome will also be binding. So now, when a party comes to a Muslim Judicial institute for a decision, they can be assured of an outcome that will not only be in line with the Shariah but it will have the force of the Law. Current submissions of the Bill do not exclude the possibility of private arbitration which will be offered by lawyers and others with a legal background.