Irfan is a dairy farmer. Irfan and his neighbor Alykhan were in a dispute over manure storage and spreading. Alykhan was upset about the odor. Irfan was angry that Alykhan had complained to other neighbors, the police and to the municipal officers instead of coming to him. Irfan and Alykhan approached the Conciliation and Arbitration Board (CAB) where the Chairman appointed two (2) mediators to guide, facilitate and assist Irfan and Alykhan to come up with a solution. After a two-hour mediation session, Irfan agreed to give notice and change the timing of his manure spreading and other farm practices. Alykhan on the other hand gained an understanding of farm work and practices, financial pressures, and Irfan’s contributions to the community. As a result of mediation, both were able to come to an amicable agreement that ended their battle over manure. They also made a plan for handling any future issues.
Mediation is generally more cost effective and often takes less time than going to court. In addition, it is a flexible process that can be used to settle disputes in a whole range of situations. It is also an excellent preventative tool and can be used effectively to stop problems from escalating. A mediation process is different to the legal process, where hostility often still exists between parties once the case is over.
In the Qur’an, [Al-Nisaa 4:35] “If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things”.
Islamic Mediation is a well established process for resolving disagreements in which an impartial third party (the mediator) helps people in a dispute find a mutually acceptable solution. Islamic Mediation is based on the following guiding principles:
- The process must be fair to all parties with equal representation from each side.
- The process needs collaborative problem solving between those in dispute.
- Every effort is made to aim for a ‘win/win’ situation that is acceptable to all parties.
- Focus is on the future, with emphasis on rebuilding relationships or recognizing that agreeing to disagree is also acceptable but should be done in a civilized manner.
- Respect and dignity for all concerned must be in the forefront of all discussions and dealing.
- The past issues may be part of discussions without apportioning blame for what has happened in the past.
- Belief that acknowledging feelings as well as facts allows participants to let go of their anger and move forward.
- Re-affirming the belief that Allah is watching over everything.
In the words of Prophet Mohamed (SAW), “Shall I not inform you of something more excellent in degree than fasting, charity and salah? It is putting things right between people, for to incite people to dispute is like a razor. And I do not mean that it shaves off the hair but that it shears the religion.”
One of the most fundamental principles of Mediation is Confidentiality. Parties come to Mediation with the hope and confidence that their dispute will be resolved peacefully and harmoniously. CAB members are trained to maintain confidentiality and at the beginning and end of every mediation session, parties are also reminded and encouraged to maintain confidentiality. It is normal for a human being to be tempted to discuss or share the information about the mediation session(s) with friends, family, work mates, leaders and well wishers; but one must understand that disclosing any information in relation to the mediation sessions is a breach of confidentiality and may lead to the failure of the Mediation session or the Mediation process in its entirety. In the words of Paulo Coelho, “If you want to be successful, you must respect one rule, never lie to yourself.”
In 2013 & 2014, the International Conciliation and Arbitration Board (ICAB) organized a Mediation and Conciliation Training Program in London (2013) and Dubai (2014) which was conducted by Centre for Effective Dispute Resolution (CEDR) (one of the largest conflict management and resolution consultancy in the world). The training produced 44 Ismaili accredited mediators from Afghanistan, Australia, Canada, Congo DRC, UAE, India, Iran, Kenya, Pakistan, Syria, Tanzania, Tajikistan, UK and the USA who are now tasked with training CAB members around the world. All CAB members upon appointment by Hazar Imam are trained by a team of 2-5 accredited mediators and these trainings last for 5 days, followed by coaching sessions and assessments. In the three (3) year tenure of a CAB member, he/she also receives Continuous Professional Development training (CPD) which equips the CAB member with immense knowledge and skills in the art of Mediation.
It is advisable at this juncture to also point out that CAB in Tanzania is primarily confined to carry out Mediation and occasionally Conciliation. The difference between Mediation and Conciliation is that in a Mediation parties are in the driving seat throughout the process, and the mediators only act as facilitators, who assist the parties to come up with their own solutions, whilst in Conciliation although the parties are in the driving seat, the mediators are in a position to offer possible solutions and suggestions. A CAB member in Tanzania generally acts as a Conciliator if he/she notices that the parties have failed to reach an agreement and that by offering possible solutions an agreement can be reached. In the event the mediator does act as a conciliator, the parties are advised to ponder on the suggestions/solutions before agreeing to or accepting the suggestions/solutions. At the end of the Mediation, parties are always advised to seek independent legal advice, so as to give the Mediation proceedings a fair and just conclusion.
If you, like myself before being appointed as a CAB member, assumed that CAB only assists in resolving matrimonial disputes, then let me clear the confusion. CAB handles cases of all nature; that is to say, commercial, civil, domestic, family, matrimonial, business, child custody, testate & intestate succession, to name a few. CAB members come from diverse professions, identity and backgrounds. The current team is made up of businessmen/women, accountants, trainers, lawyers, doctors, waezeens, ex- Mukhi/Kamadia & Mukhiani/Kamadiani, psychologists, paralegals, teachers, etc. As a team, the CAB members are in sync and maintain confidentiality even within themselves, that is to affirm the saying, “what happens in CAB, stays in CAB”. CAB members do not discuss cases, names of parties, current status and outcomes during CAB meetings. There is no compromise on the principle of confidentiality.
As Shia Imami Ismaili Muslims, we are guided by the farmans and teachings of Hazar Imam, and he is our role model. We must take it upon ourselves to encourage our brothers and sisters in the jamat, communities we know of, societies we live in and the world at large to resolve disputes through mediation. In the words of Mowlana Hazar Imam, “Differences must be resolved through tolerance, through understanding, through compassion”. In the world we live in today, the cost of living keeps rising, hence we must aim to live economically and prudently. Let us not spend money in costly and time consuming litigation, when there exists a body in the Jamat that can assist you in resolving your differences quickly, confidentially and at no cost.
If you have any questions, whether related to CAB or the process of Mediation & Conciliation, please feel free to contact any CAB member. Our contact information has been placed on all Jamatkhana notice boards.