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| Aisyah Kahar, S.H. |
MEDIATION IN ALL ISLAMIC FAMILY DISPUTES IN INDONESIA
By: Aisyah Kahar, S.H.
Indonesia has the world’s largest Muslim population, and they are served by the religious/Islamic courts concerning matters concerning marriage and divorce, inheritance, and property. Indonesia has a huge rate of divorce disputes in the Religious Court. In 2022, there were around 516.340 divorces involving Muslim marriages, an all-time high for the past decade (Indonesia: Number of Muslim Divorces 2022 | Statista, n.d.). The rise in divorce cases indicated a growing acceptance of the practice. Even so, divorcing in Indonesia can have serious consequences, especially for women. The most commonly cited grounds for divorce, however, were financial problems and difficulties. Unfortunately, for many women, the financial difficulties would not end with divorce – in fact, it may just be the beginning. Men are typically the primary breadwinner in Indonesia, leaving many women financially dependent on their husbands. Meanwhile, custody of the children is usually awarded to the woman after a divorce. This leaves many Indonesian women without financial support and the additional burden of having children to raise alone. Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties in identifying and assessing options and negotiating an agreement to resolve their dispute (Greenberg, 1983). Mediation is available in Islamic law as well. Islamic mediation, or Wasaatah, is well-established today (Manaf et al., 2018). Mediation should be used before the litigation process in court because of its effectiveness and efficiency in solving that problem. Mediation is generally seen as a better form of dispute resolution for family matters because, amongst other things, it is considered to be a more flexible, less costly, and less time-consuming dispute resolution option, which also allows for the emotions of the parties to be recognized and addressed (Field, n.d.). This essay will consider arguments against mediation related to patriarchy and conservative Islamic Law, and it will then argue that the best solution is mediation.
Every society, country, and community has a legal culture and social control affecting mediation. Moreover, social control can be defined as a network of overarching rules and processes that bring legal consequences to certain behaviors, such as the general rule of tort (Friedman, 1984). It is argued that most women in Indonesia are controlled by men. Dustan (2019) states there are always attitudes and opinions about the law. Indonesia is dominated by a patriarchal culture making mediation harder likely. ‘The perceptions and behavior of the women are still strongly shaped by cultural norms, legal regulations, and religious prescriptions’ (Bennett, 2005). Cultural norms in Indonesia mean that many people believe that mediation cannot be successful. Women are not brave enough to join in a mediation, they just follow their husbands. The two parties to a family law mediation, usually a man and a woman, do not necessarily, nor even perhaps often, meet on truly equal terms. However, cultural norms do not necessarily have a negative impact on the success of mediation. It is commonly known that women these days have changed. Amy Stanley recently proved that there is great value in studying the experiences of modern women across a geographical area larger than one continent. The metropolitan women are generally more independent (2016). Their independence can be seen also directly in public places. For example, working women are almost everywhere Therefore, the majority of women in big cities in Indonesia are not likely to be controlled by their husbands. For this reason, mediation can still be the best solution to all the family disputes.
From many Islamic scholars’ perspectives, mediation is not needed for divorce cases starting with the husband. Talaq is the unilateral right of the man to divorce his wife. He can do this either verbally or in writing (Patel, 2023), (The Different Methods of Islamic Separation – Part 2: The Different Types of Talaq, n.d.). However, many people do not know about mediation. Especially in Indonesia, mediation is not popular just like the other Alternative Dispute Resolutions. Mediation is one of the types of alternative dispute resolution available today. Here, the parties to a suit meet with a neutral third party, called a mediator, to try and find a mutually acceptable resolution to settle the case. It does not apply only to the divorce itself but also to child custody, child support, joint property, and women's rights. Also, a verse from the Qur’an which is about the process of mediation in a family dispute is Al-Nisaa 4:35, which states,
“If you have reason to fear that a problem might occur between married couples, appoint one arbiter from among his family and one arbiter from among her family. If they both want to set things right, God may bring about their reconciliation. God is all-knowing, fully aware.”
Therefore, mediation is still applicable and beneficial for Islamic divorce cases. Mediation truly opens the minds of both parties.
It also seems that the woman is subject to a power imbalance in mediation, for example, confidentiality provides her no protection from a failure on the part of the male party to disclose information, and no protection from his disclosure of false information (Field, n.d.). The potential abuse of the confidential nature of mediation is therefore problematic for women participants and is of particular concern where financial matters are being discussed concurrently with children's issues, as they often are. Women should, however, be made aware of these potential disadvantages before they choose to participate in mediation. They should also be assisted in developing a safety or fallback plan for their protection (Field, n.d.). That is, women should be encouraged to use any private sessions with the mediators to discuss their fears or concerns on this issue; for example, that the male party is not fully disclosing all financial information or that they are anxious to speak frankly themselves for fear of his possible later misuse of that information. Further, mediators should receive specific training to identify when a male party is engaging in an abuse of the confidential nature of mediation. Specific training could also assist mediators to counteract such behavior by, for example, naming it in the mediation as contrary to the principles of the process in which the parties have agreed to participate.
In conclusion, mediation, where a neutral third person assists the parties in solving their disputes, is regarded as being particularly suitable for parties who need to maintain some kind of relationship, as many parties to family law proceedings do. Mediation, as a dispute resolution process in family law, can provide greater flexibility in the outcomes, as parties are not necessarily constrained by legal remedies. Given the wide variety of individual circumstances in family law disputes, such flexibility is desirable. Mediation usually works more quickly than either litigation or face-to-face negotiation. The overwhelming majority of matters will eventually settle but the speed element of mediation means a minimization of costs, a better result for the parties, and less strain for the participants. (Field, n.d.). Therefore, mediation should be used in all Islamic family disputes in Indonesia.
References
Bennett, L. Rae. (2005). Women, Islam, and modernity: single women, sexuality and reproductive health in contemporary Indonesia. RoutledgeCurzon. https://www.routledge.com/Women-Islam-and-Modernity-Single-Women-Sexuality-and-Reproductive-Health/Bennett/p/book/9780415448031
Dunstan, I. (2019). How Women are Transforming Indonesia | Chatham House – International Affairs Think Tank. https://www.chathamhouse.org/2019/05/how-women-are-transforming-indonesia
Field, R. (n.d.). Family Law Mediation: Process Imbalances Women Should be Aware of Before They Take Part.
Friedman, L. M., 1930-, author. (1984). American law. https://lib.ui.ac.id
Greenberg, D. F. (1983). Donald Black’s Sociology of Law: A Critique. Law & Society Review, 17(2), 337. https://doi.org/10.2307/3053351
Indonesia: number of Muslim divorces 2022 | Statista. (n.d.). Retrieved October 24, 2023, from https://www.statista.com/statistics/705558/number-of-muslim-divorces-in-indonesia/
Manaf, A. W. A., Shakri, A. K. binti, & Mahyut, S. M. binti. (2018). Mediation in Islam. Advanced Science Letters, 24(7), 5171–5173. https://doi.org/10.1166/ASL.2018.11297
Stanley, A. (2016). Maidservants’ Tales: Narrating domestic and global history in Eurasia, 1600-1900. American Historical Review, 121(2), 437–460. https://doi.org/10.1093/AHR/121.2.437
The different methods of Islamic separation – Part 2: The different types of Talaq. (n.d.). Retrieved October 28, 2023, from https://www.familylaw.co.uk/news_and_comment/the-different-methods-of-islamic-separation-part-2-the-different-types-of-talaq
