A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.
“Promoting the Peaceful Resolution of Disputes in the Shia Ismaili Muslim Community – a Holistic Approach”
It is often said that mediations should focus more on ensuring a fair process than a fair outcome. What if mediations focused on both? What role do ethics have in mediation? Could appealing to certain universal ethics, such as brotherhood, unity, equity and dignity, help resolve disputes more favorably? These are all essential questions that can help determine whether creating an ethical culture of mediation can help people resolve their disputes more effectively as well as bandage emotional wounds resulting from the dispute.
Background on Conflict Resolution in Islam and the Conciliation and Arbitration Boards
Throughout its history, the Shia Ismaili Muslim community (“Ismailis”) has maintained a tradition of resolving disputes and differences through a voluntary process of mediation, conciliation and arbitration. The tradition of resolving disputes is underpinned by Islamic principles of unity, brotherhood, justice, tolerance, peace and goodwill. Such principles are rooted in Islam’s history, stemming from the Quran,1“If two parties of the believers fight, put things right between them; then, if one of them does wrong against the other, fight the insolent one till it reverts to Allah’s commandment. If it reverts, set things right between them equitably, and be just. Surely, Allah loves the just. The believers are indeed brothers: so set things right between your two brothers, and fear Allah; haply so you will find mercy.” (Qur’an 49:9-11) to the teachings of Prophet Muhammad (peace be upon him) and the Imams.2“Do not separate yourself from your brother unless you have exhausted every approach in trying to put things right with him… Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him… Seek reconciliation with your brother, even if he throws dust at you.” (The Sayings and Wisdom of Hazrat Ali, England, 1992)
In 1986, His Highness the Aga Khan, the 49th hereditary Imam (spiritual leader) of the Ismailis, established a global institutional framework of Conciliation and Arbitration Boards (“CABs”) to provide dispute resolution services3CABs primarily provide mediation and conciliation services. In Canada and the USA, parties may submit their commercial disputes to arbitration if they are unable to resolve their dispute through mediation. for Ismailis at the regional, national and international level. CAB’s mandate is to assist parties with differences or disputes arising from commercial, matrimonial, testate and intestate succession, and other civil liability matters in an equitable, efficient, confidential, cost-effective, amicable and constructive manner. In doing so, CAB’s services embody key mediation principles of voluntariness, confidentiality, neutrality and impartiality, in a way that is culturally sensitive and underpinned by the ethics of Islam.
Such services are provided by members of the community who are appointed by His Highness the Aga Khan for a three-year term and serve on a voluntary basis. Reflecting gender balance, diversity, and the plurality of the Ismaili community, CAB members typically consist of various professionals including lawyers and social workers, as well as businesspersons and senior community leaders.
Currently, the CAB system consists of 19 national CABs that operate in North America, Europe, Asia, Africa and Australia. Many national CABs have regional CABs (e.g. USA has 7 regional CABs and India has 6 regional CABs; Pakistan is the only country that has a national CAB, regional CABs and local CABs, the latter comprising of almost 400 volunteer mediators). Overall, theInternational CAB (“ICAB”) coordinates the work of the global CAB system by developing policies and programs, identifying and sharing best practices across the CAB system and handling complex international (i.e. cross border) cases and appeals. One of ICAB’s primary responsibilities is to coordinate and deliver mediation training to all CAB members around the world. This training program seeks to be best-in-class and has been developed in coordination with the Centre for Effective Dispute Resolution (CEDR) based in London.
Creating an Ethical Culture of Mediation
Recent trends in alternative dispute resolution have shifted from a facilitative approach to a transformative approach, which focuses on empowering disputants to interact with one another in order to better understand and recognize each other’s needs and interests. This new approach helps foster and promote a stronger and more peaceful relationship post-dispute. The CAB mediation process encourages individuals to resolve disputes with compassion, empathy, integrity, and dignity; it also facilitates post-dispute healing, so parties can look to the future with hope and confidence.
Oftentimes, when parties are in an intractable dispute, they are unable to consider any perspective other than their own. CAB members assist parties in viewing a dispute not only through their own lens but from the perspective of the other disputing party as well. The ability to share and understand the feelings of another by imagining their situation, commonly referred to as empathy, is a critical element in conflict resolution. In an address at Harvard University in 2015, His Highness the Aga Khan emphasized the importance of participating in a true dialogue with patience and a readiness to listen. He explained,
“Perhaps it is a natural condition of an insecure human race to seek security in a sense of superiority. But in a world where cultures increasingly interpenetrate one another, a more confident and a more generous outlook is needed.
What this means, perhaps above all else, is a readiness to participate in a true dialog with diversity …. But that takes work, and it takes patience. Above all, it implies a readiness to listen.”
In quoting the former Governor General of Canada, Adrienne Clarkson, he added, “What is needed… is a readiness ‘to listen to your neighbour, even when you may not particularly like him.’ Is that message clear? You listen to people you don’t like!”
As a faith-based dispute resolution system, CABs are uniquely situated to appeal to the disputant’s commonalities, i.e., their commitment to live within the ethics of Islam. As His Highness said in a message to over ten thousand people (including practioners of different traditions of Islam and of other faiths) who gathered in Al Khwabi, Syria, in November 2001, “[a]ny differences must be resolved through tolerance, through understanding, through compassion, through dialogue, through forgiveness, through generosity, all of which represent the ethics of Islam.”
In seeking to underpin its mediations with these ethical principles, the CAB system recently introduced training for its members on how to create “an ethical culture of mediation.” In other words, how to create an enabling environment for disputants to resolve their differences that are consistent with key, universal ethical principles: harmony, integrity, dignity, empathy, fair dialogue, collaborative engagement, moral reasoning, equity, and healing. This allows all mediation participants (including the mediator) to engage in the mediation process with a focus on mediating in good faith and with the view to achieving fair and ethical outcomes. This entails requesting the parties to:
- view each other not as adversaries but as kin looking for a harmonious outcome;
- be honest and true to themselves and to each other;
- treat each other with respect and fairness;
- engage in fair dialogue and listen to each other;
- try and understand each other’s views without any prejudice or judgment;
- approach issues in a collaborative manner, in a spirit of compromise and the common good;
- resolve the dispute based on honesty, fairness, justice, and integrity; and
- in the spirit of kinship, focus on healing the underlying relationship using compassion and forgiveness, and bandage the wounds between themselves.
CAB’s focus on creating an ethical culture by emphasizing harmonious relationships and the well-being of the disputants, such as helping them move past any emotional wounds caused by the dispute, can help them find a solution that not only satisfies their positions, but also helps them find inner peace beyond the dispute.
A Holistic Approach to Conflict Resolution
As a faith and community-based system, CABs also coordinate and collaborate with other Ismaili institutions to promote dispute prevention, conflict management, and to address systemic issues and trends of disputes for Ismailis. Such institutions are responsible for the socio-economic well-being of the community. Therefore, relevant areas of coordination include services relating to economic planning, health and social welfare, education, and legal assistance.
CABs share root causes of disputes to help their sister institutions take appropriate dispute prevention measures. This may include, for example, non-identifiable information which indicate a trend of disputes caused by mental health, financial, or inter-generational issues. The sister institutions would then provide support to the community to foster awareness and develop initiatives to address these root causes. In addition, when assisting parties to resolve disputes, CABs may, with the consent of the party and in a way that safeguards confidentiality, refer that party to a specific sister institution to receive more personalized support.
Another example of how CABs provide a holistic approach to conflict resolution is through their monitoring and evaluation process. This framework focuses on three major areas: (i) parties’ satisfaction of CAB’s services; (ii) CAB’s effectiveness in resolving disputes in an equitable, efficient, confidential and effective manner; and (iii) mediators’ self-assessment of their performance and areas of improvement. This process requires CAB mediators to follow up with parties after the conclusion of the mediation – regardless of settlement – to determine their satisfaction with the outcome, whether the settlement, if any, is being implemented, and if not, whether CAB can provide further assistance. This process of monitoring and evaluation further allows CABs to develop strategies aimed at improving the quality of their services and to evaluate and strengthen CAB’s services to adapt to the needs of the community. It also helps CABs determine whether they can help parties ‘bandage their wounds’ as a result of the dispute and, where appropriate, refer parties to sister institutions for additional support.
This “it takes a village” approach to alternative dispute resolution allows the Ismaili CAB system to provide a greater and more valuable service to the community in keeping with the ethics of Islam.
For more information on the Ismaili Conciliation and Arbitration Boards, please visit CAB | the.Ismaili.♦
Shan Momin, a resident of Dunwoody, Georgia, is the Executive Officer for the Aga Khan Ismaili International Conciliation and Arbitration Board where he focuses on developing and implementing strategy and overseeing its global mediation training. He has previously represented clients in family, commercial and administrative law, and has previously served as legal counsel for the largest government agency in the state of Georgia.
Momin, Shan. “Promoting the Peaceful Resolution of Disputes in the Shia Ismaili Muslim Community- a Holistic Approach.” Canopy Forum, March 3, 2022. https://canopyforum.org/2022/03/03/promise-and-perils-series-promoting-the-peaceful-resolution-of-disputes-in-the-shia-ismaili-muslim-community–a-holistic-approach/.