Introduction
Overview
Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the preeminent mode of dispute resolution. Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.
Mediation is also
an informal alternative to litigation. Mediators are individuals trained in
negotiations, who bring opposing parties together and attempt to work out a
settlement or agreement that both parties accept or reject. Mediation is used
for a wide gamut of case-types ranging from juvenile felonies to federal
government negotiations with Native American Indian tribes. Mediation has also
become a significant method for resolving disputes between investors and their
stock brokers. See Securities Dispute Resolution.
Arbitration is a simplified
version of a trial involving limited discovery and simplified rules of
evidence. The arbitration is headed and decided by an arbitral panel. To
comprise a panel, either both sides agree on one arbitrator, or each side
selects one arbitrator and the two arbitrators elect the third. Arbitration
hearings usually last between a few days to a week, and the panel only meets
for a few hours per day. The panel then deliberates and issues a written
decision, or arbitral award. Opinions are not public record. Arbitration has
long been used in labor, construction, and securities regulation, but is now
gaining popularity in other business disputes. Title 9 of the U.S. Code
establishes federal law supporting arbitration. It is based on Congress's
plenary power over interstate commerce. Where Title 9 applies, its terms
prevail over state law. There are, however, numerous state laws on ADR.
Forty-nine states have adopted the 1956 version of the Uniform Arbitration Act
as state law. The act was revised in 2000 and subsequently adopted by twelve
states. The arbitration agreement and award is now enforceable under both state
and federal law.
In 1958, the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards was drafted to aid in
the enforcement in domestic courts of awards granted in foreign countries. As
of August 2007, there were 142 countries participating in the convention. In
1970, the The advantages and disadvantages of using alternative dispute resolution
To prosecute or defend proceedings in the civil courts can be very costly. There is the matter of court fees as well as solicitor’s fees and, in some cases, barrister’s fees. There can be a considerable amount of preparation work as the system focuses on the trial, and this may include the preparation of witness statements, expert evidence and reports and drafting complex claims and particulars of the claim.
Once legal proceedings have commenced the parties themselves are no longer in complete control of the action as others become involved. This can cause a delay. These delays can come from such matters as the need for detailed instructions from the client, communications between legal representatives and the availability of counsel to advise and draft legal documentation. Court staff and officials also need to action and process the appropriate paperwork.
The court proceedings are very formal. They involve precise written claims, supporting legal arguments. The same can be said for defences. There are pre-trial hearings and applications for directions with strict time limits. This makes it difficult for an unqualified person to follow and understand.
The system is adversarial in nature. This means that the parties are each represented by legal representatives whose sole interest is to advance their client’s case. It is about winning and not losing so there is very little incentive to co-operate.
Another problem of court proceedings is that they can be very complex. Both the High Court and County Court have their own sets of rules that have to be followed, otherwise the parties risk applications to strike out their case for non-compliance. The rules relating to costs allowed are difficult for lay people to understand. The timetables are applied strictly by judges. This can be illustrated by the case of Vinos v Marks and Spencer PLC (2000) where a claim was struck out by the court due to the late service of the claim (9 days).
Finally, it could be argued that the courts are not always fair in the way it treats litigants. To pursue a case to appeal for example would be very time consuming and expensive. Commercial litigants such as insurance companies and banks and building societies have considerable resources at their disposal and this may mean that they are able to take full advantage of an individual who may have problems in funding their case. Delay and expense are likely to operate against individuals and commercial litigants will know this.
There are a number of advantages to using one of the methods of alternative dispute resolution (ADR) and under the Civil Procedure Rules it is generally expected that the parties should have considered the use of ADR before commencing court proceedings. It is the duty of the court to consider, at every stage in proceedings, whether alternative dispute resolution is appropriate.
The advantages of ADR are:
1. More flexibility. In the case of arbitration, the parties have far more flexibility to select what procedural and discovery rules will apply to their dispute (they can choose to apply relevant industry standards, domestic law, the law of a foreign country, etc.).
2. Select your own Arbitrator or Mediator. The parties can often select the arbitrator or mediator that will hear their case, typically selecting someone with expertise in the substantive field involved in the dispute. The arbitrator (or panel members) need not even be an attorney. In this way the focus can be on the substantive issues involved rather than on technical procedural rules. In normal litigation, the parties cannot select the judge, and the judge and/or jury may often need expert witnesses to explain extremely complex issues. The greater the expertise of the arbitrator, the less time that needs to be spent bringing him up to speed.
3. A jury is not involved. Juries are unpredictable and often damage awards are based solely on whether they like the parties or are upset at one party because of some piece of evidence such as a photo that inflames the passion of the jury. Juries have awarded claimants damages that are well above what they would have received through alternative dispute resolution; and they have also done the opposite.
4. Expenses are reduced. Attorneys and expert witnesses are very expensive. Litigating a case can easily run into the tens of thousands of dollars. Alternative dispute resolution offers the benefit of getting the issue resolved quicker than would occur at trial – and that means less fees incurred by all parties.
5. ADR is speedy. Trials are lengthy, and in many states and counties it could take years to have a case heard by a judge or jury. Appeals can then last months or years after that. In a matter of hours, an arbitrator often can often hear a case that otherwise may take a week in court to try with live witnesses. With arbitration, the evidence can be submitted by documents rather than by testimony presented through witnesses. ADR can be scheduled by the parties and the panelist as soon as they are all able to meet together.
6. The results can be kept confidential. The parties can agree that information disclosed during negotiations or arbitration hearings cannot be used later even if litigation ensues. The final outcome can also be made private if the parties so stipulate and agree. On the other hand, most trials and related proceedings are open to the public and the press.
7. Party participation. ADR permits more participation by the litigants. ADR allows the parties the opportunity to tell their side of the story and have more control over the outcome than normal trials overseen by a judge. Many parties desire the opportunity to speak their piece and tell their side of the story in their own words rather than just through counsel.
8. Fosters cooperation. ADR allows the parties to work together with the neutral arbitrator or mediator to resolve the dispute and come to a mutually acceptable remedy.
9. Less stress. ADR is often less stressful than expensive and lengthy litigation. Most people have reported a high degree of satisfaction with ADR.
10. Conclusion. Because of these advantages, many parties choose ADR (either mediation or arbitration) to resolve disputes instead of filing or even proceeding with a lawsuit after it has been filed. It is not uncommon after a lawsuit has been filed for the court to refer the dispute to a neutral before the lawsuit becomes too costly. ADR has also been used to resolve disputes even after trial, while an appeal is pending.
11. Sample subject matters. Some examples of disputes that can be settled by ADR include but are not limited to:
·
Business
disputes- contracts, partnerships, ownership
·
Property / Land
use disputes- property transfers, boundaries, easements
·
Family disputes-
divorce, property, custody, visitation, support issues
·
Consumer /
Collection disputes- repairs, services, warranties, debts, loans
·
Employment
disputes- employment contracts, terminations, non-compete
·
Landlord/tenant
disputes- evictions, rent, repairs, security deposits
·
Neighborhood
disputes / Relational disputes or other civil or personal conflicts
·
Personal Injury
disputes / Insurance disputes- accidents, coverage, liability issues
Cheapness – The relative cheapness of ADR in comparison with the Courts is advantageous. Costs normally associated with court proceedings such as court fees, delays and having to follow complex court processes are not incurred with ADR.
Speed – The use of ADR is much quicker. In particular one of the quickest and cheapest methods of ADR is negotiation and this is because parties get round the negotiation table themselves to solve the dispute without the need for representatives.
Control – With ADR the parties retain control over the dispute and the way it is resolved rather than handing over control to the Courts. There is a saying with litigation in the courts to the effect that once started no matter how sure you are of the merits of your own case, there is no knowing when it will end.
Adversarial – Court proceedings are adversarial and about winning not losing, whereas ADR is about finding possible solutions to disputes. As the proceedings are in private it can be a damage limitation exercise and this can be important if the parties expect to do business with each other in the future. ADR can avoid bad feeling between the parties.
Privacy – Court proceedings are conducted in public. The press is admitted and it is possible for the case to be reported in the local or national newspapers. A clear advantage of ADR is that the methods used are private and again this may be an important factor if commercial reputations are at risk.
Expert Arbitrators – With court proceedings the Judge may be an expert in the area of law involved but is not likely to be an expert in building or civil engineering or whatever the subject of the dispute is about. The judge relies upon facts being presented to him or her following detailed and expensive trial preparation. Expert witnesses may well be necessary and this will inevitably contribute to the length of the trial and the overall cost. When expert arbitrators are used they do not rely upon expert evidence in the same way, this means that the proceedings are usually quicker and cheaper.
There are a number of disadvantages these are:
Disadvantages of ADR:
1. There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to proceed with litigation and trial before a judge or jury. However, you will certainly better understand the other side’s position!
2. Arbitration decisions are final. With very few exceptions, the decision of a neutral arbitrator cannot be appealed, with fraud being an obvious exception. Additionally, some states will not enforce decisions of arbitrators that are patently unfair, a high standard to meet. Another ground for setting aside an award is if the arbitrator’s decision exceeded the scope of the arbitration clause or agreement. Some arbitration clauses are broad, others are narrowly limited to specific disputes. Decisions of a court, on the other hand, usually can be appealed to an appellate court for a variety of legal grounds and for numerous alleged procedural errors.
3. Limits on Arbitration Awards. Arbitrators can only resolve disputes that involve money. They cannot issue orders compelling one party to do something, or refrain from doing something (also known as injunctions). For example, Arbitrators generally cannot change title to real property. Of course this is subject to the specific language of the arbitration clause.
4. Discovery limitations. Some of the procedural safeguards designed to protect parties in court may not be present in ADR, such as the liberal discovery rules used in
5. Fee for the Neutral. The neutral mediator or arbitrator charges a fee for his or her services. Depending on the arbitrator or mediator selected, the fees can be substantial (of course the parties typically agree to divide the fees between themselves). Depending on the contract language and state law, a prevailing party can be awarded fees and costs. A judge on the other hand, charges no fees for his services.
6. May have no choice. Often the contract in dispute contains a broadly worded mandatory arbitration clause. Many lease agreements and employment contracts, for example, contain mandatory arbitration provisions, as do operating agreements and other types of business contracts. Unless both parties waive arbitration, most states will compel arbitration at the request of any party.
7. Non-binding arbitration. Sometimes the court may order nonbinding or Judicial Arbitration. This means that if a party is not satisfied with the decision of the arbitrator, they can file a request for trial with the court within a specified time period after the arbitration award. Depending on the process ordered, if that party does not receive a more favorable result at trial, they may have to pay a penalty or fees to the other side.
8. Warning. The parties pursing ADR must be careful not to let a Statute of Limitation run while a dispute is in any ADR process. Once the statute expires, judicial remedies may no longer be available.
Willingness to compromise – The use of ADR is dependant upon the willingness of individuals to compromise and to this extent it is arguable that the parties are more likely to settle for less whereas once they have embarked upon court proceedings their expectations may be higher. It could be that one of the parties does not accept there is a problem and is not prepared to compromise.
Uncertainty – Although ADR is generally quicker and cheaper this is not always the case. Even negotiations can drag on and become lengthy and expensive with no certainty of a resolution of the dispute. At least with court proceedings there is usually certainty.
Complexity and Expense – Generally ADR is cheaper than using court proceedings but some formal arbitration hearings can still be complex and expensive depending on the subject matter of the dispute. There are professional and trained arbitrators and these can be expensive.
Making a statement – Because ADR is confidential they are unsuitable if one party wants to make a point and put out a clear warning or send out a message about the proceedings and their outcome.
Immediacy - ADR is not suitable where one party wants the other to stop instantly. This could be in the case of one party wanting to prevent another from selling goods which are of a similar design to something they are selling or in the case of harassment.
Time limits – It is worth remembering that if there is a time limit involved in a legal claim it may not be appropriate to use ADR. It does not put a stop to any legal time limit and may mean that, if unresolved, the time to make a legal claim has passed.
The courts now encourage the use of ADR as a result of the Woolf Reforms. Judges can stay proceedings to give parties the opportunity of exploring whether ADR might be of a possible benefit. In fact the Centre for Dispute Resolution has reported that there is a growing trend for Judges to stay proceedings. In 2000, 27% of disputes the Centre dealt with had been stayed. This compared to 19% in 1999 and only 8% in 1998.
The availability of ADR means that the use of these various methods can free up the courts for essential cases where ADR is inappropriate. The result being that the use of ADR has an impact upon vital resources and the effectiveness of civil courts. Many would argue that Lord Woolf should be commended for helping to identify the advantages of ADR and encouraging its greater use.
ADR IN ISLAM
Islam encourages people
to solve their matters amicably rather than in an enmity creating manner.
Hence, in Islam, we are encouraged to use the ADR processes to resolve
disputes. Islamic law contains the following ADR processes:
v sulh (negotiation,
mediation/conciliation, compromise of action);
v tahkim (arbitration);
v med-arb (a combination of sulh
and tahkim);
v muhtasib (ombudsman);
v informal justice by the wali
al-mazalim or chancellor; and
v
fatwa of muftis (expert determination).
This paper briefly examines the above ADR process in the
Islamic law and also justifies the inclusion of „compromise of action‟ in ADR,
as rightly done by including it in sulh.
A. Sulh
(negotiation, mediation/conciliation, compromise of action):
1. Sulh literally means „to cut off a dispute‟ or „to finish a
dispute‟ either directly or with the help of a neutral third party. Arbitration
is governed by different regulations; therefore arbitration does not come under
sulh. Sulh includes negotiation, mediation or conciliation and also compromise
of action which easily fits within the definition of ADR.
The origin of sulh is found from the following two verses of
the Holy Quran:
1. “The believers are but a
single Brotherhood: So make peace and reconciliation between your two
(contending) brothers: And fear Allah that ye may receive Mercy”.1
2. “If two parties among the Believers fall into a quarrel
make ye peace between them: but if one of them transgresses beyond bounds
against the other then fight ye (all) against the one that transgresses until
it
complies with the command of Allah; but if it complies then
make peace between them with justice and be fair: for Allah loves those who are
fair (and just)”.2
Another Quranic verse strappingly supports amicable settlement
of dispute on equitable and fair. In the word of the Quran:
“In most of their secret talks there is no good: but if one
exhorts to a deed of charity or justice or conciliation between men (secrecy is
permissible): to him who does this seeking the good pleasure of Allah We shall
soon give a reward of the highest (value)”.3 Prophet Mohammad (SWA)
supported sulh. He encouraged people to settle their dispute by sulh. In one of
the hadith reported in Sahih Al Bukhari he is reported to have said:
“He who makes Peace (Sulh) between the people by inventing
good information or saying good things, is not lair”.4
“There is a sadaqah to be given for every joint of the
human body and for every day on which the sun rises there is a reward for the
sadaqah for the one who establishes sulh and justice among the people”5
The Prophet also upheld the cause of sulh even when
certain derogatory remarks were made against him. It is narrated by al-Bara bin
Azib that when Allah‟s apostle concluded a peace treaty with the people of
Hudaibiya, Ali bin Abu Talib wrote the document and he mentioned in it,
„Muhammad, Allah‟s Apostle‟.6 The pagans said, „Don‟t write: „Muhammad, Allah‟s
apostle‟, for if you were an apostle we would not fight with you. Allah‟s
apostle asked Ali to rub it out, but Ali said, I will not be the person to rub
it out‟. Allah‟s apostle rubbed it out and made peace with them on the
condition that the Prophet and his companions would enter Makkah and stay there
for three days, and that they would enter with their weapons in cases.7 there
are at least two recorded incidents in which the Prophet mediated between two
warring parties.
“Narrated Sahl bin Sa‟ad: There was dispute amongst the
people of the tribe of Bani Amr bin „Auf. The Prophet went to them …… in order
to make Sulh (Peace) between them.”
“Narrated Sahl bin Sa‟ad: Once the people of Quba fought
with each other till they threw stones on each other. When Allah‟s Apostle was
informed about it, he said: „Let us go to bring about reconciliation between
them.”9 The companions of the Prophet SAW also encouraged sulh. For
example, in the famous letter written by Umar bin al-Khattab to Abu Musa al-Asharion,
the latter‟s appointment as a judge contained several principles relating to sulh:
“All types of compromise and conciliation are permissible
except those which makes haram anything which is halal and a halal is haram”.
In the above letter, the part relating to haram and halal
in compromise is based on a hadith of the Prophet: it is narrated by Aisha
that Allah‟s apostle said, „If somebody innovates something which is not in
harmony with the principles of our religion, that thing is rejected‟.11 Mediation
and conciliation under Islamic law are conducted in an informal manner without
being governed by any formal rule, as is the ever increasing trend in the
modern institutional mediations. Informalism is found to be a useful thing
which helps the process of settlement. Countries like China , Korea ,
Japan and Vietnam
conducted mediation without adhering to any formal rules.12
The only rule which governs Sulh in Islamic law is that no
compromise is possible in the domain of huquq Allah (i.e. Rights of Allah)
which include hudud punishment, zakat, kaffarah, etc. Any effort circumvents
the provisions prescribed for this through mutual settlement is sinful and
avoid. In huquq il „abad‟ (rights of human being) however compromise and
conciliation is not only possible but preferable, so long it is equitable and
just and does not violate any provision of shariah. If the matter is already
before the court, it has been made the duty of the qadi to bring about
settlement through compromise is lawful and preferable as it settles dispute.
However, if the quid fails in this effort to bring compromise, then the dispute
should be judicially determined in a proper matter.
Furthermore, Mejelle14 has formulated 40 articles to
deal with sulh (from Articles 1531–1571). This proves that in Islam (not
only the sulh), the word exists, but the procedures which are in a
codified form exist as well as.
B.Tahkim (Arbitration):
In pre-Islamic Arabia , the
concept of tahkim (arbitration) was known and it was practiced to settle
various types of civil and commercial disputes. The arbitration award was not
enforceable if parties contested it, unless the trial chief was in a position
to get in enforced.15 However, according to a writer, awards of the arbitrators
appointed in theukaz, a fair held periodically in Mecca, were
customarily regarded as binding on the parties.16 Islamic law allows people to
seek the aid of arbitrators when they fall into quarrels and when they are
unable to resolve private matters between themselves. This can be proven from
the Quran, Sunnah, Ijma‟ and Qiyas.
It should be noted here that the position of an arbitrator is
similar to the position of a qadi (judge) in the formal court in the
sense that under Islamic law, the same jurisdiction would be given to the
arbitrator as a judge in terms of solving the dispute and giving an award in a
dispute. However from the beginning, it must be known that neither arbitration
nor a compromisation can be made to disputes of a Hudud nature. Furthermore,
matters concerning li'an (mutual imprecation), talaq (divorce), nasab
(paternity), fasakh nikah (judicial abrogation of marriage),
emancipation of slaves, rushd (adolescence), safih (spendthrift),
mafqud al-khabar (a person whose whereabouts are unknown), waqf (endowments)
and revenue matters cannot be arbitrated, as the judge alone has the discretion
to decide these matters (Rashid, 2006).17 The most remarkable verse with regard
to arbitration in the Quran is the following:
“If you fear a breach between them (the man and his wife),
appoint (two) arbitrators, one from his family and the other from her‟s; if
they both wish for peace, Allah will cause their reconciliation. Indeed Allah
is Ever All Knower, Well Acquainted with all things”.
As observed by Rashid (2006), the use of word „reconciliation‟
in the above verse indicates that an arbitral award is not binding and Imam
Shafie also held that arbitral awards are binding if parties mutually agree to
enforce it.19
Prophet Mohamed SAW also recognised and practiced arbitration.
He appointed arbitrators and accepted their decisions. He also acted as arbitrators
in several occasions to resolve disputes arising between individuals and
tribes. He acted as an arbitrator in the dispute between several Arab tribes
regarding which of them will have the honour of lifting and placing the black
stone after rebuilding the Kaaba. He put the Black Stone in his outer garment
and judged that every tribe chooses a representative and that all
representatives carry the garment together to the place of the stone. He also
chose arbitration to settle the dispute between himself and Bani Anbar.
The leading case where arbitration was used by the
companions of the Prophet (peace be up on him) was the famous political case
between the Caliph „Ali bin Abi Taleb‟ (the fourth rightly guided Caliph) and
„Muawya bin Abi Sofian‟ (the governor of Assham which is Syria , Lebanon ,
Palestine and Jordan ). Muawya had refused to
recognise Ali bin Abi Taleb‟s right to the Caliphate. The dispute led to a
civil war between the two parties. During the fighting, Muawya bin Abi Sofian
demanded the settlement of their dispute through arbitration. Ali bin Abi Taleb
accepted that and each party appointed his arbitrator. The two arbitrators were
to decide on who would be the Caliph. The two arbitrators were nominated in the
arbitration agreement document and drafted an arbitration agreement specifying
the dispute. The procedure, duration of the arbitration, place of arbitration
and the applicable law were fixed in the arbitration document.21 The second
view is that Shariah knew arbitration in its modern sense. This view is based
on the following verse from the Quran:
“Verily! Allah commands that you should render back the
trusts to those, to whom they are due; and that when you judge between men, you
judge with justice”.22 According to Hanafi School Maliki
School
In the Mejelle, arbitration is considered as an effort
in reconciliation (Article 1850). According to Mejelle, each party has
the right to dismiss and change the arbitrator unless and until they find
themselves in situation where two parties have appointed the arbitrators, and a
judge was appointed by the Sultan (king or ruler) and authorised to
appoint a representative, has also given him permission and by reason of the
judge having appointed him, he is in a position of representative of judge
(Article 1847). Thus, the decision of an arbitrator would be binding (Article
1848).23
It is now universally accepted that the western law of
arbitration has become too technical, formal, costly and protracted. Compared
to this, tahkim offers informal, far less technical, cheap and speedy
process. Each party has a right to withdraw from the arbitration before award
is given. There are numerous Islamic rules and procedures with regard to
arbitration and one separate book can be written on discussing these
procedures. The above discussion is sufficient to prove that arbitration is not
a new kind of ADR to Muslims, but it is just a mere renaissance of the Islamic tahkim
principles with a fresh coat of paint.
C.Med-Arb (a
combination of sulh and tahkim):
Verse 35 of
Surah al-Nisa of the Quran mentions conciliation along with arbitration:
“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.”
From the above mentioned verse, it is clear that the job of
the arbitrator is first to mediate; only when it fails should he start
arbitrating. Article 1851 of the Mejelle supports the idea of going for
arbitration when mediation attempts fail. This proves that in Islam, med-arb is
also recognised and used. Combining Mediation and arbitration is arbitration is
an idea which is now being universally accepted. In China ,
Japan , Korea , Vietnam
and Malaysia ,
for example, mediation and arbitration are combined. According to Art.18 of the
Rules of the Korean Commercial Arbitration Broad, conciliation may be possible
even after the start of arbitration proceedings. If conciliation fails,
arbitration starts; if it succeeds, it is incorporated into the arbitral award.
Similarly, Art.28 of the Rules of Maritime Arbitration of the Japan Shipping
Exchange, revised in 1996 allows mediation at every stage of the arbitration
proceedings. Article 35 of the Arbitration Rules of the Vietnam International
Arbitration Center Kuala Lumpur
Regional Center
D.Muhtasib
(ombudsman):
The institution of ombudsman engaged in its present form in Sweden in 1809.
England
had its ombudsman under the Parliamentary Commission Act, 1967. According to
Islamic Law, muhtasib is equivalent to ombudsman. Muslims are practicing this
from more than fourteen hundred years before when Al-Quran Came from Allah.
Holy Quran is the origin of ombudsman. Many verses of Holy Quran focus about
Ombudsman. The main purpose of ombudsman under Islamic law is account taking
(hisbah). The function of the muhtasib covered religious activities of people
such as offering a salat (prayers), maintenance of mosques, etc. He also
regulated community affairs and behaviour in the market, such as accuracy of
weight and measures and honesty in business dealing. Also the municipal affairs
like keeping the roads and streets clean and lit at night and prevent the
building of a factory or a house which could clash with the community
interests.24 The basis of a muhtasib is found in the Quran:
“Let there arise out of you a band of people inviting to all
that is good enjoining what is right and forbidding what is wrong; they are the
ones to attain felicity.”25
“Ye are the best of peoples evolved for mankind enjoining what
is right forbidding what is wrong and believing in Allah. If only the People of
the Book had faith it were best for them; among them are some who have faith
but most of them are perverted transgressors.”26
“They believe in Allah and the Last Day; they enjoin what is
right and forbid what is wrong; and they (hasten in emulation) in (all) good
works; they are in the ranks of the righteous.”27
“The believers men and women are protectors one of another:
they enjoin what is just and forbid what is evil: they observe regular prayers
practice regular charity and obey Allah and His apostle. On them will Allah
pour His mercy: for Allah is exalted in power Wise.”28
“O my son! Establish regular prayer enjoin what is just and
forbid what is wrong: and bear with patient constancy whatever betide thee; for
this is firmness (of purpose) in (the conduct of) affairs.”29
Moreover, The Prophet Mohammad (SWA) himself appointed Sa‟ad
ibn Al„aas Ibn Umayyah as muhtasib of Mecca
and Umar bin al-Khattab as that of Madina. Abd Allah ibn Utbah al-Mas„ud was
the muhtasib of Madina during Umar Ibn al-Khattab‟s time.
E.Informal justice
by the wali al-mazalim or chancellor:
A wali
al-mazalim is considered as a fusion of a judge and an ombudsman. He is a a
public officer appointed by the king to set into motion the coercive authority
of the ruler and the adjudicative function of a judge at large in order to
bring about quicker, cheaper and just settlement of disputes. The settlement of
disputes by Wali Al Mazalim was done in a purely imformal manner. The procedure
differed from that of ordinary Courts in several respects. For example: a wali
al-mazalim could admit evidence which a court might declare inadmissible
and at the same time, he could also call persons as witnesses who were not
qualified to act as such before a court. A wali al-mazalim may also rely
on his own personal knowledge while deciding a case compel litigants to
arbitrate, and dispense away with the requirement of proving matters which
require strict proof before a court plus many other things. Ibn Khaldun and J‟far
Ibn Yahya were appointed by Caliph Harun al-Rashid to the office of wali
al-mazalim. The jurisdiction of wali al-mazalim included the
following types of cases:
v complaints about the misappropriation
of property;
v complaints lodged by stipend holders;
v complaints against misdeed in
administering lands given as private or public endowments;
v complaints against the indiscretion in
public records kept by registrars, accountants and clerks;
v complaints against the corruption of
government;
v
complaints against things which normally fell in the jurisdiction of a muhtasib;
and complaints against individuals.
F.Fatwa of Muftis (Expert determination):
A fatwa is an Islamic religious ruling, a scholarly opinion on
a matter of Islamic law. Now the question which arises is, how does a fatwa of
mufti become an ADR process? ADR methods like evaluative mediation or
conciliation, mini trial (executive Tribunal) and expert determination allows
an impartial third party, chosen by the parties to make a non-binding
evaluation assessment on a dispute based on the merit and on his own expertise.
The reason promoting the parties to submit their dispute to a neutral evaluator
for giving his non-binding assessment is desire to know their rights and
duties, and if satisfied, to comply with the assessment on a purely voluntary
basis.
In history, fatwa of muftis has proven to be an
effective mechanism to solve disputes between the parties. Normally, the fatwa
issued would be based on the use of ijthihad or reasoning. What
muftis normally do is that they either settle the disputes in the light of the
existing cases or extend the law, if necessary, from the prevalent general
principles of Islamic law or alternatively, they formulate a new principle
provided that the new principle formulated will meet the conditions laid down
by the jurists.
Conclusion:
According to the above discussion it is clear that, ADR
process is not new for Islam. Basically, western ADR is the transcript of
Islamic ADR. The emergence of ADR was a reaction against and response to the
inadequacies of the litigation process and the resultant heavy backlog of case
that chocked the courts from the lowest to the highest levels. Everyone can see
the glaring demerits of litigation: that it is grossly invasive of privacy and
destructive of reputation; it is acrimonious, furthering resentment between
people who might otherwise find occasion to co-operate; it paralyses productive
activities; it corrupt the litigants by tempting them to harass each other and to
twist, stretch and hides facts; it is costly and wasteful.
Reference