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“Proposal for a Muslim American Alternate Dispute Resolution and Mediation Center”
Lee Ann Bambach
It has become cliché for lawyers to tell their clients that 90% of disputes are settled before trial. Many of these successful disputes are resolved through alternate dispute resolution.
Of course, some mediators and/or arbitration centers are more effective than others: unsurprisingly, resolving a construction dispute, for example, would be more likely if the mediator or arbitrator were familiar with the construction business. This remains the case in other industries or specialties. In addition to technical expertise to facilitate the mediation process, cultural commonalities and language capabilities also contribute to a more effective dispute resolution. If a litigant is more comfortable speaking in Arabic or Urdu, for example, an Arabic-speaking mediator with a cultural knowledge base will be more effective speaking with the litigant and understanding what would be needed to close the deal. In his private practice, for example, author Abed Awad was appointed by judges because his faith and language competencies allowed him to successfully mediate disputes between Muslim litigants.
Islamic law has a rich history of mediation and alternate dispute resolution. The most relevant Islamic alternate dispute category for the American environment is what is known as taḥkīm, described in classical adab al-qāḍī works as a private alternative to the formal court system. Scholars have set forth procedural guidelines for taḥkīm, as well as specifying proper subject matter jurisdiction. And while there is some debate among scholars over whether it is more like mediation (i.e., non-binding) or arbitration (binding), what is clear is that conciliation between parties whenever possible is its ultimate objective.
Thus, unlike the American adversarial legal system, the Islamic judicial system defers to mutual settlement and resolution as the first course of action. Disputes among Muslims have consequences on extended families and community relationships. If disputes are not managed properly, and if tensions are not calmed, the dispute will cause communal disharmony. Far from a winner-take-all approach, the Islamic law objective of resolving a dispute is to provide litigants with a win-win framework.
In this short article, we are interested in exploring what it would look like to establish a Muslim American Mediation/Arbitration Center. We believe that a Mediation Center or service founded on religious, cultural, and linguistic competencies would substantially contribute to resolving a large percentage of disputes within the Muslim American community. Doing so would not only save Muslim Americans millions of dollars in attorney’s fees but would also maintain and support communal harmony.
We will not be able to tackle all areas of dispute resolution in this limited space. Instead, we will outline the hypothetical establishment of a Muslim American Mediation Center to resolve family disputes – the most emotional and hotly contested of disputes.
The building blocks to establish a Muslim American Mediation Center to resolve family disputes are (i) applicable substantive law; (ii) applicable procedures, including reasonable discovery; and (iii) mediator/arbitrator competencies.
Unlike in pre-modern Europe, where the property of the wife merged with the property of the husband, under classical Islamic law Muslim women maintain a separate independent legal status. For example, a Muslim wife does not take on the husband’s family name. With this independent legal status, all the property acquired by the wife during the marriage continues to be her separate property with no legal or equitable claim by the husband. Similarly, all property acquired by the husband during the marriage is his separate property, although the wife has a legal and equitable claim to his property for purposes of support during the marriage and for support in the event of divorce. This would include nafqat al-idda (three months of post-divorce maintenance), muta (covers a few years of post-divorce alimony), child support and mahr (payment to wife agreed upon as part of the marriage contract). In addition to child support, the husband is responsible to cover the shelter costs for the minor children until they reach a certain age. With no concept of marital assets or marital income or community property under classical Islamic law as understood under American law, unless the parties specifically own a property as joint tenants and the title reflects the same, the property remains the separate property of the person holding the title.
It is not accurate to generalize that Islamic family law is fundamentally imbalanced toward women. The truth of the matter is that equality depends on the unique facts of each case. It is a two-way street: Islamic law is extremely advantageous to high-net-worth wives as it excludes all of their premarital (appreciation and income during the marriage) and marital assets from the husband’s legal or equitable claims. The reverse, to a great extent, is true for high-net-worth husbands, except that the wife would have a claim for support from his assets.
Under American law, there are two family law jurisdictions: (1) Equitable Distribution regime and (2) Community Property regime. All assets acquired during the marriage in a community property state are considered to be split 50/50 between the spouses, although there are nuanced issues with premarital assets and active assets such as businesses. In equitable distribution states, all assets acquired during the marriage are considered marital assets subject to equitable distribution – equitable, not equal.
Judges in equitable distribution states consider a list of factors to determine whether the division will be 50/50 or 60/40 or any other division. Passive assets are treated differently than active assets. In addition to child support, the economically dependent spouse has a claim to alimony – whether temporary, limited duration, permanent, reimbursement, or rehabilitative in nature.
Unlike the American concept of custody, child custody according to Islamic law is composed of three guardianships: guardianship for rearing (hadhana), guardianship over child’s person (wilaya ala al nafs), and guardianship over child’s property (wilaya ala al mal). Hadhana means “to look after the minor who cannot look after him/herself.” This includes raising the child and taking on the responsibility of feeding, bathing, and clothing him or her. The person with hadhana is the physical/residential custodian of the child.
Islamic law applies age-specific and gender-specific criteria to determine the parent entitled to hadhana and its duration. There is a presumption in favor of the mother receiving the hadhana of a child – a son until the age of 11 and a daughter until she reaches 13 in the majority of law schools. After reaching the respective age the hadhana period terminates and the child may be joined with the father.
Legal guardianship (wilaya ala al nafs and wilaya ala al mal) by operation of law is strictly vested in the father, and, if he is not available, passes to the father’s male paternal line. A mother is not legally entitled or eligible to be the child’s legal guardian under classical Islamic law.
American law of custody and guardianship provides that both parents have equal custodial rights and are eligible to be the residential custodian of the child and their legal guardian. The standard to determine which parent is awarded custody is based on an expansive view of the best interests of the child.
It is important to note here that a Muslim Mediation Center would not be able to apply classical Islamic custody and guardianship law to American Muslim disputes. This would be contrary to public policy. A fusion of the Islamic law principles and the best interest standard must be followed to serve the child’s best interests.
What substantive law would a mediator or arbitrator apply to a Muslim American family dispute?
In order for Muslim Americans – especially Muslim American women – to have faith in the Muslim American Mediation Center, the classical Islamic family law must be based on the current social and economic realities of living in the United States.
When the 10th century Maliki scholars noticed an inequity toward wives who had contributed to the acquisition of the marital estate during the distribution of inheritance or financial rights in the event of divorce, they applied the methodology of the Sharia as a knowledge production moral system to remedy this injustice. They created a cause of action called al kad wa al si’ayiah which became the norm. Under this legal theory, a wife is entitled to compensation and/or a share for her contributions to the marital estate. Muslim American scholars must engage in ijtihad to evolve the classical Islamic family law to address the unique circumstances of Muslim women and families in America.
To summarize, the success and fairness of the Center will depend on a substantive law that is anchored in the Sharia but also specific to the financial and non-financial realities of living and working in the United States. This does not mean making Islamic family law more American. This means making Islamic family law more in sync with the actual social and economic circumstances of Muslim Americans.
Rule of Procedure
Family disputes involve both financial and non-financial issues. The financial issues include equitable distribution/community property, alimony (different types from temporary to permanent), child support, and counsel fees. For property distribution, identifying the purchase date and the value are the key determinations.
Valuations of assets are most of the time contested. The mediator would have to determine the valuation of all properties and recommend a division. We recommend that the Center appoint a qualified individual to appraise the assets with parties reserving the right to present rebuttal valuations if they do not agree with the Center-appointed appraisal.
Sometimes the incomes of the parties are contested, requiring forensic accountants to review financials and investigate the parties’ incomes. This expert should be retained by the Center with the parties reserving the right to rebuttal.
Alimony is based on the marital lifestyle. The parties should be required to submit a completed marital lifestyle questionnaire and net worth statement. The mediator should also have some limited authority to direct the parties to produce documents or other evidence. If the parties had already commenced litigation, the mediator would determine the discovery stage and adjust accordingly with a discovery order or case management order.
In the end, this is a voluntary and contractual method of resolving disputes modeled after the tradition of taḥkīm. The parties may decide the non-binding mediation route first and, if that fails, agree to submit their dispute to binding mediation.
Disputants should have the option to select a single mediator or a panel of mediators. The mediator must have experience and training in mediation. The mediator must be well versed with American family law (equitable distribution, community property, alimony, child custody, child support and counsel fees). They must also be well-versed in Islamic family law issues. A community elder or leader or imam without mediation training, legal training, and experience is not acceptable. There should be a list of qualified and/or certified mediators that the disputants must mutually select. If the matter starts out with mediation, a single mediator is sufficient. If they are unable to agree on a mediator, each should select a mediator and the two mediators will select the third mediator.
The Center would be required to develop a network of scholars trained in classical Islamic law, available to be consulted when questions of Islamic law arise. A training/accreditation program would also be important to ensure a pool of qualified mediators who could be U.S.-trained Muslim lawyers, religious leaders, etc. (including women!).
That a Muslim American Alternative Dispute Resolution and Mediation Center is an absolute requirement today for Muslim Americans to resolve disputes outside of court and avoid unnecessary litigation is to say the obvious. That faith-based ADR services can work comfortably within, and in concert with, U.S. law and public policy has already been amply demonstrated by Christian Conciliation, Jewish batei din, the Ismaili Conciliation and Arbitration Board and others. We believe that by looking to the precedents that they have set and taking the above parameters in mind, we will not only establish an alternate dispute forum but also engage through ijtihad the Sharia moral methodology to produce a jurisprudence (fiqh) that is organically developed from the unique factual and social circumstances of American Muslim life. ♦
Abed Awad is an attorney in New York and New Jersey and an international expert in Islamic law and the laws of Muslim countries. He is AV rated by Martindale and is a fellow of the International Academy of Matrimonial Lawyers. Mr. Awad was an adjunct professor at Rutgers University Law School from 2003-2020. Mr. Awad is the founder of Shariawiz, an online portal for Muslim-American estate planning.
Lee Ann Bambach is a Senior Fellow at the Center for the Study of Law and Religion and Adjunct Professor at Emory Law School. Her research focuses on the intersection of religious law and secular law, with a particular emphasis on Islamic law, especially faith-based dispute resolution and Islamic finance. She clerked for the late Honorable Sam J. Ervin III of the Fourth Circuit and worked in the D.C. office of Latham & Watkins.
Awad, Abed & Bambach, Lee Ann. “Proposal for a Muslim American Alternate Dispute Resolution and Mediation Center Combating Global Islamophobia.” Canopy Forum, April 7, 2022. https://canopyforum.org/2022/04/07/proposal-for-a-muslim-american-alternate-dispute-resolution-and-mediation-center