This article has been written by Ms. Mahek Choudhury, a 3rd year student at South Calcutta Law College, Calcutta University. 

ABSTRACT 

With so many cases happening every day, it is not possible to rely on the court. That is where Alternative Dispute Resolution comes in. It is not something new; it has been in practice for thousands of years even in Islam to resolve conflicts. It is considered one of the most effective and reliable methods to solve any dispute.  In fact, in this article, we will find that in cases of certain disputes, ADR might be even better than Litigation for the Muslim community. 

Using doctrinal research methods, the author has delved into various methods of ADR in India. The author has also analyzed the process of ADR under Islamic law, discussing its origin as well as the past. Finally, the author has given an opinion on the effectiveness of the ADR in Islamic communities along with commenting on its future.   

• INTRODUCTION 

In today’s world, where inflation is at an all-time high, it is difficult to take recourse to law and visit courts every other day for a settlement. Moreover, with everyone so busy and hardly having any time for oneself, it becomes necessary to avoid delays and waste of time and effort. Further, with the backlog of cases even after years, it becomes essential to come up with a different solution for taking recourse of law. This gives rise to Alternative Dispute Resolution which over time has become one of the easiest and least costly methods to solve the disputes without increasing the burden of the courts. 

In India, there are 5 methods of resolving disputes under ADR, namely, Arbitration, Conciliation, Mediation, Negotiation, and Lok Adalat.  Arbitration means that without a legitimate arbitration agreement in place before a dispute arises; the arbitration procedure cannot take place. In this dispute resolution method, parties submit their disagreement to one or more arbitrators. Parties must abide by the arbitrator’s ruling, which is referred to as the “Award.” Conciliation implies a non-binding process wherein the parties to a dispute get assistance from an unbiased third party, the conciliator, to seek a mutually agreeable resolution of the conflict. A less formal version of arbitration is called conciliation. 

During mediation, a neutral third party known as a “Mediator” assists the parties in their efforts to settle their disagreement amicably; the mediator does not make decisions for the parties. The parties retain control over the resolution after mediation. On the other hand, Negotiation is a non-binding process whereby the parties start talks with each other without the use of a third party to reach a mutually agreeable solution. Businesses, non-profits, government agencies, court cases, international relations, and private affairs like marriage, divorce, parenthood, and daily living all include negotiation. Lastly, Lok Adalat refers to a non-formal forum that allows for discussions in front of a judge and allows issues to be decided without placing an excessive amount of stress on legal nuances. The parties to the issue must abide by the Lok-Adalat’s final order, which is binding and will be treated as a civil court ruling without having any legal avenue for appealing the Lok-Adalat’s decision.

• ALTERNATIVE DISPUTE RESOLUTION IN ISLAM 

Islam also promotes peaceful dispute resolution as an alternative to aggressive conflict resolution. Therefore, alternative dispute resolution (ADR) is undoubtedly not foreign to Islamic law. Muslims have been using alternative dispute resolution (ADR) techniques for the past 1400 years to resolve their conflicts amicably, and Islamic legal authorities both reference and promote these techniques. This is because Islam is a faith that values harmony over conflict and compromise over confrontation. 

Islam uses a blend of broad principles and authoritative sets of laws and regulations to resolve disputes. These regulations are meant to create a framework for resolving disputes. Regular courts and alternative dispute resolution (ADR) mechanisms are closely linked in Islamic tradition. It is also thought that legal systems in nations that have adopted a traditional dispute settlement model outperform those that have chosen to diverge from Islamic principles. Prophet Mohammed, who is considered a messenger of Allah and who led to the birth of Islam, was a strong proponent of peaceful dispute resolution and also practiced these procedures. As ADR is based on the Quran and was adopted by the Prophet in his time, it is said to have religious sanctity in Islam. In Islam, the concept of ADR is permissible unless it transforms a permissible work into a forbidden job or a prohibited work into a permitted one.

Later on, following the appointment of Abu Musa Al Ash’ri as qadi(judge), he received a renowned letter from the second caliph of Islam, Muhammad bin Khattab, outlining the broad range of topics related to peaceful dispute resolution that would serve as a guide for him while making decisions on cases. Even before this letter, the Quranic passage that states the following might be used to establish the legitimacy of ADR in Islam:

“The believers are but a single brotherhood, so make peace and reconciliation (sulh) between two (contending) brothers; and fear Allah, that ye may receive mercy.”

Nonetheless, contemporary viewpoints on the customs of peaceful resolution through the procedures of mediation, conciliation, and arbitration are frequently apparent, and their significance to Islamic justice is being recognized more and more. Many people contend that Islam makes the supposition that adjudication is the best method for resolving disputes. But neither the Hadith nor the Quran emphasize the need for marriage or its value. However, the Quran and Hadith support the virtues of negotiation, mediation, etc. above claiming legal rights.

The Quran mentions several Islamic ADR procedures, including Sulh (negotiation, mediation, reconciliation, compromise of action), Tahkim (arbitration), Fatwa (expert determination), Muhtasib (ombudsman), and Med-Arb (a combination of sulh and tahkim). 

• PROCESS OF ADR UNDER ISLAMIC LAW 

• SULH (NEGOTIATION, MEDIATION, RECONCLIATION, COMPROMISE OF ACTION) – Sulh translates as “to finish a dispute,” either on one’s initiative or with the assistance of an impartial third party. Arbitration does not fall under sulh since it is subject to distinct rules. Sulh encompasses conciliation, mediation, and negotiation in addition to action compromise, all of which readily fall under the purview of ADR. Its goal is to put a stop to animosity and strife among believers so they may carry on having harmonious relationships with one another in society. Its nature is similar to private settlement, in which parties often resolve disputes among themselves without the need for outside assistance or intervention. Sulh’s adaptability and its three-pronged method of negotiation, mediation, and conciliation are its strongest points.

1. TAHKIM (ARBITRATION) – The idea of tahkim, or arbitration, was understood and used in pre-Islamic Arabia to resolve a range of civic and business conflicts. If the parties opposed the arbitration award, it was not enforceable until the trial chief was able to get it enforced. Nonetheless, a writer claims that the decisions made by the arbitrators chosen at the ukaz (a regular Mecca fair) were traditionally accepted as legally enforceable by the involved parties.  If people cannot resolve their differences or get into arguments, Islamic law permits them to seek the assistance of arbitrators. The Sunnah, Ijma, Qiyas, and the Quran all provide evidence for this. It is important to highlight that, in terms of resolving disputes and rendering decisions, an arbitrator under Islamic law has the same authority as a judge in formal courts. This makes the role of an arbitrator comparable to that of a qadi (judge). There are, however, certain matters relating to marriage, custody, divorce, endowments and so on that cannot be arbitrated.

1. FATWA (EXPERT DETERMINATION) – ADR in certain nations, where a fatwa or legal opinion is used to resolve any legal dispute. A fatwa is a scholarly judgment on subjects about religion and is regarded as a religious rule in the Islamic faith. By Islamic custom, the only person qualified to issue a fatwa is a distinguished legal expert, or panel of scholars (ulama) in Sunni schools, or a mufti in Shia schools. It is customary for fatwas to be given with the use of reasoning and logic (ijtihad). The fatwa’s conclusions are advisory rather than legally obligatory. Islamic history is replete with examples of complex problems being brought to the attention of Muftis, who then issued fatwas as responses.

1. MUHTASIB (OMBUDSMAN) – The practice of ombudsman has been in Islam since Allah revealed the Quran, and it is derived from the Quran. The Holy Quran has several verses that mention the Ombudsman. According to Islamic law, the ombudsman’s primary function is to take accounts (hisbah). The upkeep of mosques and other religious practices like salat (prayer) was among the duties performed by the muhtasib. In addition, he oversaw market conduct and community affairs, enforcing rules about truthfulness in economic dealings and the precision of weights and measures. Additionally, city affairs include maintaining clean, well-lit highways and streets at night and preventing the construction of homes or factories that could conflict with the interests of the neighborhood. 

1. MED-ARB (COMBINATION OF SULH AND TAHKIM) – Another kind of ADR used in Islam is called med-arb, which combines tahkim and sulh. It is expected of the arbitrator to attempt to negotiate a resolution between the parties first, and if that fails, to move on to arbitration. Islam views Medi-Arb as a special trait that combines the finality of arbitration with the consensually of the mediation process. The complete dispute resolution process consists of two steps: mediation is the first phase and arbitration is used to give the procedure’s conclusion finality. This technique differs from Sulh and Tahkim because of its blended procedure and unique characteristics. 

• EFFECTIVENESS OF MEDIATION IN ISLAM  

Under Islamic law, solving disputes through litigation is a difficult process because of various disadvantages. Many countries do not follow the Sharia law to regulate certain disputes, especially regarding banking and finance. Therefore in certain cases, it becomes necessary for the Muslim community to solve their disputes without relying on the courts of law. However, mediation and arbitration have proved to be an effective method in solving disputes relating to the Islamic community. 

The most significant factor is the following principles laid down by Islam. Since the arbitration and mediation are conducted outside of courts; the parties have the liberty to follow their own set of guidelines while concluding cases of disputes. This, however, does not imply that the parties to the arbitration as well as the arbitrator can perform such acts which is not permitted or prohibited by the law. The next key principle is that both the parties to the suit have given their consent to resolve the disputes through arbitration. In litigation, it might happen that one of the parties is not ready to involve the justice department in certain matters but his/her consent would be of no value here. It would only depend on the whims and fancies of the other party. Although the effectiveness of ADR can only be proved through the environmental and social norms followed by the community it is necessary to identify the customs, culture, and suitability of legal principles before taking the dispute to an Arbitral Tribunal. 

ADR is typically seen as a more effective and non-adversarial substitute for litigation; nonetheless, its efficacy is contingent upon the parties’ shared commitment and the suitability of the selected ADR technique for the specific issue.

• CONCLUSION 

Based on the examination of the aforementioned literature and practices, it can be concluded that the process used in any society to administer justice serves as a barometer of the general public’s social consciousness and knowledge. The parties may choose from a variety of alternative dispute resolution (ADR) techniques, even by Islamic ideals of fair justice. Though political and social connotations have caused the institution to lose its integrity over time. In summary, extrajudicial conflict resolution is not new; non-judicial, native dispute resolution techniques have long been employed by all societies. The explanation above suggests that different ADR techniques were always open to the parties of their choice under Islamic ideals of fair justice.

• REFERENCES 

ARTICLES 

1. https://timesofindia.indiatimes.com/readersblog/lawpedia/what-is-alternative-dispute-order50952/#:~:text=Alternative%20Dispute%20Resolution%20mechanism%20provides,mediation%2C%20negotiation%20and%20lok%20Adalat.
2. This article was originally written by Er Khaliqul Azam and published on the Legal Service India website. The link for the same is herein- https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html
3. This article was originally written by Hisham Hanapi and Mohd Izzat Amsyar Mohd Arif and published in the International Journal of Social Science and Humanities Research at the Research Publish website. The link for the same is herein-

 https://www.researchpublish.com/upload/book/Alternative%20Dispute%20Resolution-5682.pdf

1. This article was originally written by Dr. Vandana Singh and published on ILI Law Review. The link for the same is herein- https://www.ili.ac.in/pdf/paper917.pdf
2. This article was originally written by Md. Zahidul Islam published in the IOSR Journal of Business and Management at Research Gate website. The link for the same is herein- https://www.researchgate.net/profile/Md-Zahidul-Islam/publication/255724977_Provision_of_Alternative_Dispute_Resolution_Process_in_Islam/links/566ebeb908aea0892c52a64e/Provision-of-Alternative-Dispute-Resolution-Process-in-Islam.pdf

OTHER SOURCES 

1. Quran, Surah Al-Hujarat (49), ayat 10
2. Syed Khalid Rashid. 2008. Peculiarities & Religious Underlining of ADR in Islamic Law. Kuala Lumpur: International Islamic University of Malaysia (IIUM). pp. 1-2.