the Last Word on Faith Based Arbitration
by Dr. Mohamed Elmasry September, 2005
The decision by Premier Dalton McGuinty to ban all legally recognized religious arbitration was not only misguided, but rashly unilateral and based on disinformation. Rather than learning from those faith groups that are currently conducting this form of mediation -- Catholics, Jews, Mennonites, and yes, even Ismaeli Muslims who use one form of Sharia -- and possibly looking at ways and means to fine-tune the process, the premier took it upon himself to hastily ban all government supported faith based arbitration.
McGuinty's politically charged decision dismissed any opportunity to examine provisions for building in the accountability, transparency and safeguards that were clearly and reasonably outlined in the Boyd Report commissioned by his own government. His unilateral ban is also a blatant violation of fundamental guarantees accorded to all Canadians in our Charter of Rights and Freedoms; that is, freedoms of conscience and religious practice.
To explain once again, the term "Shariah-based arbitration" is a misnomer and the cause of much unnecessary and divisive confusion. The proposed implementation of Marion Boyd's recommendations was designed simply to establish parity for Muslims in Ontario who desire equal opportunity with other religious groups to participate in consensual faith based mediation and arbitration.
The real issue at hand is that governmentally recognized faith based arbitration could be regulated to everyone's benefit. It could establish standards for licensing and/or accrediting both men and women (yes, women!) mediators; and it could determine the number and makeup of arbitration teams. For example, a government-supported faith based arbitration system could determine that specific teams be assigned to Muslim community issues; perhaps a team consisting of an elder, an Imam, a woman, a Canadian-trained Muslim lawyer and a social worker.
No other recent issue has raised the level of informed public support more than that of faith based mediation and arbitration. Only a few days before McGuinty's sudden decision, editorials in three of Canada's top circulation newspapers agreed that the Ontario government should implement the recommendations of the Boyd Report. Apparently our premier wasn't paying attention.
Mediation is the process of having an impartial third party facilitate agreement in order to end or resolve a conflict, while arbitration is the related but distinct process of having an impartial third party act as judge to recommend a clear decision in a dispute.
In fact, Dalton McGuinty can not unilaterally outlaw either process. Faith- based mediation and arbitration are as old as faith itself. Long before Canada existed as a modern state, our First Nations peoples practiced both styles of resolution and still do.
Seeking faith based mediation and arbitration is voluntary. If it is also regulated, participating arbitrators must document fully the fact that all parties involved are engaged in this process of their own free will, as a legitimate alternative to the secular civil court system.
Mediation is usually attuned to the conflicting wants and needs of two parties in family/marital disputes, while arbitration is concerned first with the rights of the opponents and their children, if any. Both processes, however, must follow the laws of the land -- a provision made very clear by the Boyd Report but too often dismissed by its opponents.
Western culture has traditionally treated faith-based mediation and arbitration with suspicion. This is because the secular world generally views all conflicts as battles in which one side wins, only because the other side must lose. In such an adversarial culture, superior value is placed on holding one party (often male) wholly responsible for the conflict. Thus, agreeing to any form of mediation and arbitration, faith- based or not, is usually equated (often by women) with giving up one's rights, power and safety.
But faith, any faith, treats family conflict resolution first and foremost as a type of meditation; that is, restoring peace of mind to those who once shared a mutual partnership of peace within their relationship.
Faith-based mediation and arbitration in Islam are no different than in any other faith group. Along with their Jewish and Christian brothers and sisters, Muslims believe it makes perfect sense to engage in mediation (and meditation!) along with arbitration to resolve family matters, right here in Canada. Here are some key reasons:
1. In matters of family conflict, our Canadian legal system often does more harm than good, as it is based on the premise that in difficult times the other person becomes an adversary, or opponent. Our litigious society -- aided and abetted by the professional legal system -- has promoted the notion of winners and losers to an absurd degree. In most cases of family conflict, the "winner" may be awarded more money, or gain some satisfaction in being proven "right," but the conflict has not been resolved, and may never be.
2. In family conflicts, one must deal with all kinds of pain. Faith based mediation and arbitration can inject a major dose of healing into the resolution process. But it is virtually impossible for secular Canadian courts or family lawyers to provide any amount of emotional or spiritual healing. Community leaders who practice faith based mediation and arbitration do not consider themselves lawyers, or marriage and family counselors (although they may be members of these professions), but rather see their roles as being primarily healing ones.
3. Faith based mediation and arbitration have the advantage of allowing the parties in a conflict to agree upon their selection of the impartial third party/parties and even the methodology of how to select those individuals. In Islamic family law, for example, both husband and wife can each select one or more persons to be on the mediation and arbitration panel.
4. Faith based mediation and arbitration cost the conflicted parties much less, both financially and emotionally, since conflicts are generally resolved much faster than if taken through the adversarial justice system. This offers a great advantage by freeing up seriously over-taxed court resources, which have resulted in large case backlogs. For example, it now takes years to complete a divorce settlement anywhere in Canada. The negative financial, social and spiritual impact on families of such extended delays is far too high. Some judges now advise Muslim couples to seek faith-based mediation and arbitration first before they will hear their pending divorce cases.
5. Mediation and arbitration, faith based or not, offer a positive forward step toward conflict resolution. They are complementary processes that should be an integral part of any justice system; they cannot be outlawed or dismissed.
6. Structured and professionally licensed faith based mediation and arbitration processes can provide valuable legal and social resources to faith-practicing Canadians, as well as potentially attracting many lapsed or non-practicing believers, from within and without all mainstream faith groups.
7. It is far better to regulate faith based mediation and arbitration and to accept them as an integral part of our Canadian justice system, than to reject their present and potential value by marginalizing or suppressing them.
Recent critics of giving Canadian Muslims the option of choosing faith based mediation and arbitration to heal family disputes object that Islamic family law is not clearly codified. But in reality, Islamic family law is no less codified than that of Judaism, Christianity, Ismaili Muslims, or the First Nations.
I have more faith in faith based mediation and arbitration than in those critics who would see it abolished in favour of making us all adversaries.
Mr. Premier, you have done a grave injustice to the laws of our land and have grossly violated our cherished Canadian Charter of Rights and Freedoms.