Concept of Musalihat- Riaz Akhtar by wuxiangyu

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									      ALTERNATIVE DISPUTE
       RESOLUTION (ADR)
Process and Technique that fall outside the
Govt Judicial process.
- ADR is generally classified into following
sub-types:
     -Negotiation
     -Mediation
     -Arbitration
     -Conciliation
NEGOTIATION
  Participation is voluntary
  No third party is involved to facilitate the
   resolution process.

 Mediation
 Arbitration          Third party is involved
 Conciliation
MEDIATION

          An act of bringing two parties in
 dispute closer together toward agreement
 through alternative dispute resolution
 (ADR), a dialogue in which a neutral third
 party, the mediator, using appropriate
 techniques, assists two or more parties to
 help them negotiate an agreement on a
 matter of common interest.
HISTORY
• History
• It is very ancient
• Found in the Phoenician and Babylon practices,
    followed by ancient Greece, then in Roman
    civilization
•   Middle ages regarded mediation differently,
    sometimes forbidding the practice or restricted
    its use
•   Some cultures regarded the mediator as a
    sacred figure.
CONCILIATION

• An alternative dispute resolution (ADR),
  process whereby the parties to a dispute
  agree to utilize the services of conciliator
  who meets with the parties in an attempt
  to resolve their differences
• Main goal is to conciliate by seeking
  concessions
         ARBITRATION

   A legal technique for the resolution of
  disputes outside the court where in the
 parties to a dispute refer it to one or more
persons by whose decision they agree to be
                    bound
HISTORY

• An ancient practices
• Under English law, the first law on
 arbitration was the Arbitration Act,1697.
ADVANTAGES OF MUSALIHAT

• Faster than litigation in courts
• Cheaper
• Greater degree of FLEXIBILITY than the
 courts
CODE OF CONDUCT FOR MUSLEH

• Neutrality
• Confidentiality
• Mindful of psychological and physical
  wellbeing of parties
• Should not offer legal advice
• Maintaining skills of mediation
SOME COMMON ELEMENTS OF
MUSALIHAT
• Providing an appropriate physical environment (i.e selection of neutral venues)
• Each party is allowed to explain his/her story
• Improving the emotional environment (through restricting pressure, aggression and
    intimidation by providing a sense of neutrality by reducing anxiety among parties
•   Assisting the parties to communicate
•   Identification of issues
•   Clarification and specification of respective interests and objectives
•   Facilitating the parties negotiate
•   Conversion of respective subjective evaluation into more objective values
•   Identification of options
•   Discussion and analysis of possible effect of various solutions
•   Adjustment and refining of the proposed solution
•   Writing the agreement
VALUES OF MUSALIHAT

• Non-adversarilism
• Responsiveness
• Self-determination and party autonomy
NON-ADVERSARILISIM

• Based on actual process of mediation
  (litigation is adversarial as its process
  must come it a logical conclusion based on
  decision made by a presiding judge.)
• (Mediation does not always end with a
  decision)
RESPONSIVENESS

• Respond to the interests of the parties
  without the restriction of law
• Allows the parties to come to their own
  decision
Self Determination and Party
Autonomy
• Parties make their own choices on what
  they will agree on
• Give parties the ability to negotiate with
  each other to satisfy their interest
• Generate some options leading to out-
  come
• Removes the need for the presence of
  professional individual.
Musalihat

 Social and religious obligations

 Why Musalihat
 It is needed when Conflict arises.

 CONFLICT
 Stop listening
 Entrenched in particular positions
 Believing not being heard or understood
 Believing he or she is right
ISLAM AND MUSALIHAT
• Islam the only religion which makes Musalihat Obligatory
• “And if you fear a breach between then (wife and husband), appoint an
    arbitrator from his family and an arbitartor from her family. If they both
    desire to be reconciled ALLAH will make them of one mind(causes
    reconciliation).
•                            (NISA :35)
•   “if a women fears illtreatment from her husband, or desertion, it is no
    blame for them twain if they make terms of peace between themselves.
•   PEACE IS BETTER.
•                           (NISA :128)
•   “There is no good in much their secret conferences save (in) him who
    enjoins alms giving and kindness and peace making among the people.
•                           (NISA :114)
Obligation of an Arbitration

Listeners of the falsehood! Greedy for illicit
  gain! if then have recourse to you JUDGE
  between then or disclaim jurisdiction.
                       (AL-MAIDA-42)

								
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