Conflict is a natural part of relationships, and it can come about in the form of a business conflict, a conflict in a familiar or employer relationship, or even divorce. Litigation is one means to resolving these issues, but not the only means, and sometimes, not even the best means. Court can be timely, costly, and emotionally taxing. Many faith groups offer alternative methods to dispute resolution, such as mediation, that often provide a more efficient option.
For example, Islamic law has a rich history of mediation, which aims to reconcile parties when possible. In Islamic law, this is actually the first step before any court action, which reflects the value of preserving harmony in the community. The Muslim Prophet Muhammad (peace be upon him) stated that “making peace justly between two parties is an act of charity.” Mediation is not to occur in place of achieving justice, but rather an avenue through which justice can be reached via a win-win solution.
As a Muslim American lawyer who works with clients from several different cultures and backgrounds, I have found that it’s very helpful for mediators to understand the religious and cultural backgrounds of clients.
I have worked in family law for eight years, I can say that mediation is a good option for issues in contested divorces. Especially when custody is part of a divorce, mediation can be a helpful option for the couple who will have to continue to co-parent after they sever the romantic aspect of their relationship. An example of a case I can expect to see as a mediator is a divorce and custody case of a south Asian, Muslim family who seek to create a parenting plan and allocate parental responsibilities in a way that is in the best interest of the child, and disagree about involvement of relatives and traveling domestically and internationally with the minor child(ren). Mediation can help the parties stay focused on the big picture, and their core needs, rather than “winning vs. losing” or “right vs. wrong.”
Mediation can be voluntary or court-ordered: Regardless of how clients come to mediation, it is often more successful than not in reaching resolutions. Mediators do not make decisions for the clients like judges or adjudicators would, but they facilitate discussion and allow the parties themselves to reach a resolution. This empowers clients to have agency over their own life’s major decisions like custody and finances. In my personal opinion, the parties are more equipped to make decisions about their own lives than a judge who may not know the parties, their situations, or their cultures as well.
One truth about legal cases of family law and divorce law is that the more agreements there are between the couple, the more cost-efficient and time-efficient the divorce process would be in court. It’s recommended for most situations, except in which there is domestic violence present. Many of the issues in family law, which is arguably the most “personal” kind of law, include issues of children’s religion, private schools, and cultural issues such as family involvement. This is also true in mediation between business partners, employees, or in other situations.
Despite the fact that mediation can be a great opportunity, it is less successful when mediators do not understand their clients’ needs, culturally-sensitive issues, or religious conversations. Many of my clients from diverse ethnic or faith backgrounds have said mediation was not as successful as they hoped, or that their mediator did not seem to understand them.
My parents, who are psychologists, have also repeatedly referred their clients to mediation. However, among Muslim and South Asian professionals, we often hear “we need more diverse mediators for our clients.” Several of my clients of different backgrounds do not have the same access to culturally and religiously diverse mediators who can understand their background. When clients do not have access to culturally and religiously diverse mediators who can understand their background, it impacts the level of trust that they have with their mediator, and therefore the success of the mediation.
Mediation is a career option that many do not know about. Lawyers or even those of other professional backgrounds can become mediators after taking a mediation certification course, offered by several different organizations, law firms, and bar associations, and usually offered multiple times a year. To be court-approved, a mediator must select one of the programs that are on a county court’s list.
In my profession as a lawyer for eight years, I have settled most of my family law cases. I have found myself negotiating agreements between couples and adverse parties, and in hindsight, these were the most successful cases for all parties involved. Through agreements, the parties maintained one of the most sacred and valuable assets to them: their agency and autonomy. This has led me to pursue mediation as an additional certification so I can formally conduct mediation as an alternative to court litigation and provide an option to those seeking for a mediator of a diverse background.