A Practice and approach of mediators under the shariah jurisdiction in resolving family conflicts in Malaysia / ‘Ainan Husnaa Muhammad Saifullah

• Main Author: ‘Ainan Husnaa , Muhammad Saifullah
• Format: Thesis
• Published: 2023
• Subjects: BP Islam. Bahaism. Theosophy, etc; K Law (General)
• Online Access: http://studentsrepo.um.edu.my/14766/1/Ainan_Husna.pdf; http://studentsrepo.um.edu.my/14766/2/%E2%80%98Ainan_Husnaa.pdf; http://studentsrepo.um.edu.my/14766/

The mandatory court-annexed mediation in Shariah courts is commonly referred to as sulh and led by third-neutral parties known as sulh officers. While sulh has countlessly proven to be a highly effective mechanism in reducing a backlog of cases, Shariah courts continue to be burdened with high rate of cases, including divorce and family cases. Muslim family conflicts subject to Shariah jurisdiction also continue to plague Malaysian society, a situation that has worsened since the emergence of COVID-19 pandemic. Family dynamics in Malaysian Muslim society have been severely affected. The issue of backlog of cases also remains a challenge for the Shariah courts. With only a limited number of sulh officers appointed across Malaysia and very little information available on private mediators providing mediation services for family cases under Shariah jurisdiction, the progressive practice of sulh (mediation) to resolve family conflicts has consequently become static. Therefore, a qualitative approach of semi-structured interviews with ten respondents and library research was applied to explore the prospects of private mediators, particularly Syarie lawyers with mediation accreditation (SLMAs), in terms of their practice and approach in expanding the mediation practice for family conflicts under Shariah jurisdiction. The objectives of this study are threefold: to determine the types of alternative dispute resolutions in Islam that are used to resolve family conflicts, to analyse the practice of private and state Shariah mediators in resolving family conflicts in Malaysia; and to identify the benefits and challenges faced by state and private Shariah mediators in Malaysia. The results indicated that sulh (mediation) is indeed an ideal alternative for resolving family conflicts due to its voluntary, binding, less time-consuming, and less costly. The practice and approach of mediators under Shariah jurisdiction are similar to those of civil mediators. However, compared to civil mediators, state mediators under Shariah jurisdiction rely heavily on sulh officers, whilst SLMAs barely practice mediation for Shariah family cases. The results also concluded that compared to other challenges of the mediator’s profession, the lack of awareness in the society has a high negative impact on both the society and the mediators’ perspective. The disputing parties would lose time and money while SLMAs would find it difficult to obtain clients as it is against their policy to promote themselves. SLMAs could undeniably be a great asset for the expansion of sulh or mediation practice under Shariah jurisdiction. Their services help to speed up the work of state mediators and elevate the position of Shariah courts, as mediation agreements for family conflicts subject to Shariah jurisdiction would need to be endorsed by Shariah courts via settlement agreements. To conclude, state and private mediators providing services for family cases under Shariah jurisdiction are encouraged to join forces to promote the growth of sulh (mediation) for Muslim family conflicts both within and outside Shariah jurisdiction.