Role of Arbitration Councils and Mediation in Family Disputes

Definitions

According to Black’s Law Dictionary, the terms ‘arbitration’, ‘mediation’ and ‘alternative dispute resolution (ADR)’ have been defined in the following manner:

• Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.[1]
• Mediation is a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.[2]
• Alternative dispute resolution (ADR) refers to a procedure for settling a dispute by means other than litigation, such as arbitration or mediation.[3]

Introduction

Alternative dispute resolution (ADR), such as arbitration, allows disputes to be resolved without going to court. Arbitration is essential in family law cases for resolving disagreements between spouses. According to Pakistan’s family law, the arbitration council is responsible for mediating disputes between disagreeing couples. It has been declared in section 7(4) of the Muslim Family Law Ordinance of 1961 that the chair of the council will form an arbitration council and make an effort to mediate the prevailing disputes between the parties. Similarly, it has also been contemplated in section 10(3) of the West Pakistan Family Court Act of 1964 that the court has to make efforts with regard to reconciliation between a husband and wife. However, the standards for the selection of council members and the manner in which their decisions will be accepted and carried out have not been specified.[4][5]

Pakistan’s Family Courts Act of 1964 specifies the procedure of the family court. This law was passed to provide women and children with better alternatives. The Constitution of Pakistan further stipulates that women must be treated with respect. The court has established standard procedural rules as well as a specific procedure for resolving spousal disputes. The goals of such reconciliation include safeguarding the partners and finding a respectful solution to their disputes. When spouses get divorced, women are reported to experience more suffering than men. As a result, an arbitration committee gets formed to ensure spouses can reconcile. However, a suitable framework has not been adopted for the arbitration council. The family court judges are in charge of mediating the reconciliation and their decision is followed by arbitration. As a result, the settlement carried out by family courts is not particularly noteworthy. Additionally, the arbitral council lacks power as its head is typically a political figure who has little to no interest in the arbitration procedure.[6]

Arbitration in light of Quran and Sunnah

The Quran and Sunnah are considered sources of arbitration. According to Surah An-Nisa, verse No.35 of the Holy Quran, in case of disagreement between spouses, mediators should be hired to facilitate reconciliation.

“If you anticipate a split between them (the spouses), appoint a mediator from his family and another from hers. If they desire reconciliation, Allah will restore harmony between them. Surely Allah is All-Knowing, All-Aware”.[7]

According to Ibn Kathir‘s interpretation of the Quranic verse No.35 of Surah An-Nisa, if a disagreement arises between spouses, the adjudicator will refer the couple to a steadfast person to determine their dispute. If they are still unable to address the concerns, the adjudicator will choose a credible member from the husband’s family and, similarly, from the wife’s family, who will do their utmost to convince the partners to reconcile.[8]

Arbitration in Family Disputes

Family arbitration has been described by both Quran and Sunnah. The process of spousal arbitration is expressly mentioned in the Quranic verse No.35 of Surah An-Nisa. The judge will prefer two arbitrators, one from each side, to resolve the dispute, if it gets determined that there is a conflict between the couples to the point where a divorce is feared. The arbitrators will make every attempt to bring the spouses together. Muslim jurists have differing views on the qualifications of the arbitrators, but the majority of them believe that the judge and the arbitrator should have the same qualifications and that the arbitrators should be competent to perform the act of ‘unification of a couple’. Reuniting a married couple is the goal of choosing arbitrators, which is only attainable when the arbitrators are competent. In addition, a woman can be nominated as an arbitrator and in some cases it has been found that she is even better in being able to bring the couple together. Arbitrators in divorce proceedings serve to mediate a settlement between the parties. They should regard the spouses equitably and their impartiality should be able to motivate the couples to get back together.[7][8]

Arbitration Council in Pakistan

According to Pakistani family law, if a husband wants to divorce his wife, he must send a divorce notification to the head of the Union Council who will then establish an arbitration council. This has been contemplated in section 10(3) of the West Pakistan Family Court Act of 1964:

“At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.”[5]

The family court is also expected to work to reunite a couple and prevent a spouse from reaching a conclusion that could possibly have long-term implications for their lives, while the law expressly prohibits divorce proceedings without first attempting reconciliation. A report on the mediation procedure in family courts, published by the Law and Justice Commission of Pakistan, has deemed the procedure unsatisfactory.

A case reported as 1996 CLC 673 determines the authority of the chair of the arbitration council. In this case, the competence of the arbitration council had been determined by the court. The court also declared that the sole objective of forming the arbitration council was to facilitate the reunification of a married couple. The court shared a similar viewpoint regarding the delegated right to divorce in the event of a separation, acknowledging that if a person had transferred the right to divorce and the case had been filed before an arbitration council, a settlement between the parties should have been the mediated by the committee. The court remarked that if the arbitration council had not been formed in accordance with the requisite rules and regulations, the divorce would not be enforceable. In this regard, legislation is silent with respect to what happens if a case is decided by the council without going through the requisite procedures.[9]

The court further held that it was solely within the family court’s purview to determine how such proceedings should be handled. With regard to the reconciliation process in family disputes, the superior courts have ruled that simply noting whether reconciliation is not possible does not constitute sufficient compliance with the pertinent legal requirements. Due to this, the vast majority of respondents who are female and who began their divorce proceedings in Pakistani courts hold the view that the arbitration council has failed to fulfil its duty to mediate between spouses and remain dissatisfied with the arbitration council’s process. Additionally, the parties are dissatisfied with the mediation procedure itself, while the outcomes rendered through arbitration in family courts are occasionally skewed. As a result, the arbitration system has been unsatisfactory in family disputes in Pakistan.

Family-Mediation Benefits

• It provides swift justice, which also lessens the pressure on courts.
• The concerns are addressed peacefully without harming the relationship between spouses.
• It protects the family’s connection and its children from emotional problems brought on by a protracted legal dispute. Additionally, it is unquestionably a smart move in situations where the children need their parents to stay in contact even after the divorce.
• It upholds privacy and secrecy, giving parties the chance to be candid about the options they want to take into consideration, which does not occur in court proceedings.
• The litigants also save money since they have more discretion in this process than in court proceedings, allowing clients to keep the specifics of their disputes out of public view.
• Family-related disputes become more contentious in court processes, whereas in mediation the parties can communicate and come to a more convincing resolution as a result of their own choices. Decisions in mediation can be made based on what works best for the family’s needs, which may not be the case in court.

Conclusion

The arbitration procedure evidently plays a crucial function in family disputes. Islamic law also lays emphasis on reconciling disputes and reuniting families. Pakistani legislation also requires mediation in family conflicts and disputes between spouses. An arbitration council in a divorce case gets set up specifically for this purpose, but the law remains silent regarding the nomination and appointment of the arbitrators and the required mediation process in family matters. At times, even the council’s chair, a political figure, is unaware of the legal requirements of the arbitration process.

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References

[1] Black’s Law Dictionary 119 (9th ed. 2009).

[2] Black’s Law Dictionary 1070-71 (9th ed. 2009).

[3] Black’s Law Dictionary 91 (9th ed. 2009).

[4] The Muslim Family Laws Ordinance 1961. (n.d.). Punjablaws.gov.pk.   http://punjablaws.gov.pk/laws/777a.html

[5] West Pakistan Family Courts Act 1964. (n.d.). Retrieved April 29, 2022,   https://www.malaw.org.pk/pdf/West%20Pakistan%20Family%20Courts%20Act%201964.pdf

[6] The 1973 Constitution of Pakistan, Article 25(3), 26(2), 34, 35, 37(e). (n.d.). https://na.gov.pk/uploads/documents/1549886415_632.pdf

[7] Quran 4: 35 Surah An-Nisa – 35. (n.d.). Quran.com https://quran.com/en/an-nisa/35

[8] Khatir. Tafsir Ibne Khatir (Vol. 2, p. 447) [Review of Tafsir Ibne Khatir]. Darussalam Publishers & distributors.

[9] 1996 CLC 673

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