THE ROLES AND QUALITIES OF A MEDIATOR IN SETTLING FAMILY DISPUTES FROM THE SYARIAH PERSPECTIVE INTRODUCTION The Western

approach to conflict resolution prioritizes problems to be abstracted and resolved; Islamic approaches bear a resemblance to other non-Western approaches insofar as they frame conflicts as matters of communal and not individual concern, and highlight the importance of repairing and maintaining social relationships. However, Muslim approaches to conflict resolution draw on religious values, social networks, ritual of reconciliation and historical practices of communal and inter-communal coexistence. Strong emphasis is placed on relationships between personal and group identity, between individual and collective responsibility for wrongdoings, and between attentiveness to 'face'-related issues (public status, shame and reputation for genorosity) and the achievement of restoractive justice within a context of continuing relationship.1 MEDIATOR Mediator is the person who intervene in a dispute between two parties, to reach an amicable solution for the dispute, considering the stance and validity of claims of the parties, extend up to which each of the party is ready to compromise or accept. It is a voluntary activity with or without a request from the parties, the suceess depend on the acceptance by the parties.2 AUTHORITY MEDIATOR IN ISLAMIC PERSPECTIVE Prophet Muhammad (saw) was also said to encourage compromise and mediation in both public and private matters. A well knon hadith on this matters states: "You bring me lawsuits to decide, and perhaps one of you is more skilled in presenting his plea than the other and so I judge in is favor according to what I hear. He, to whom I give in judgment something that is his brother's right, let him not take it, for I but give him a piece of the Fire". " If two parties among the believers fall into a fight, make peace between them; but if one of them transgresses beyond bounds against the other and fight all against the one that transgresses until it
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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 ang just". (49:9) " The Believers are but a single brotherhood: So make peace and reconciliation between your two (contending) brothers; fear Allah that you may receive mercy". (49:10) EXAMPLE FORM OF MEDIATOR PROCESS: MEDIATION Mediation in the sense of trying to achieve a compromise that can accommodate, to some extent at least, the interests of both parties, is also frequently resorted to by Islamic remedy agents.3 In the mediating sessions, the third party goes beyond mere listening and suggesting general advice; he also helps to formulate concrete proposals and suggestions on how best to reduce feelings of animosity and normalize social conduct. Nevertheless, although the third party may offer a solutions to the conflict at hand, as a mediator he does not impose them on the individuals involved. Based on the available data, marital disputes that are commonly resolved through mediation are those that take place during marriage. Sometimes the disputes may become so intense that one of the parties, usually the wife, appeals to the religious office to request divorce or some form of material compensation. When handling such disputes, the official at the religious office and the Shariah court are obliged to respond to them in a conciliatory mode. Whenever possible, the officials try to achieve a medicated settlement rather than go along with the original request. This attitude is taken to the counsellor, as well as to the kadi and the hakim syari'e, the preservation of intra-family solidarity is a matter of overriding concern. Therefore, it is not solely a question of identifying the absolute truth as a basis of judgment or to find faults with the individuals that is importance to the religious officials when they are confronted with such cases. Rather, the third party is there to listen attentively, to point out the rights and wrongs, show the weaknesses or strengths of the position taken by the respective parties and suggest compromise. Therefore, whenever meeting an estranged couple, the main concern of the third party is to engage the disputants in negotiation and to see what can be done to accommodate the interest of both parties so that their marriage could be saved and the couple can continue to live together as a family. A prerequisite to succeed with this, however is that both parties must be willing to confront each other in the presence of the third party. When engaging mediation, the religious officials share the responsibility of decisionmaking with the disputants amd of making them active partners in the conflict resolution process.
3 Managing marital Disputes in malaysia. p.129

Furthermore, it is widely believed that a solution that is achieved through the active participation of the disputants themselves is more effective in restoring harmony than one imposed from outside.4 The importance of mediation in family dispute can be seen from the fact that the Qur'an itself gives a detailed injunction concerning the mediation process in such disputes in such disputes in verse 4:35, which can be translated as follows: And if you have reason to fear that a breach might occur between a (married) couple, appoint an arbiter from among his people and an arbiter from among her people; of they both want to set things aright, God may bring about their reconciliation. Behold God is indeed all knowing, aware.5 MEDIATOR IN SULH PROCESS Similarly, under Islamic law, 'the purpose of sulh (compromise, seetlement or agreement between parties to a dispute) is to end conflict and hostility among believers so that may conduct their relationship in peace and amity. In Islamic law sulh is a form of contract, legally binding on both the individual and community levels. The word salaha and its derivatives have appeared 179 times, in the Al Quran. However, the word salaha itself appears only once Surah An Nisa' verse 128 (4:128) "And sulh settlement is best, even though men's souls are swayed by greed". There are others quranic verses which Allah (swt) commands us to reconcile and make peace between two disputans. In one hadith, Prophet Muhammad (saw) was reported to have said that, "He who causes intentionally to death of another, it is left to the family of the deceased to decide on qisas ot the taking of diyyah.and if they agreed on sulh, it is for them". Although the concept of compromise, settlement, reconcilliation, and aggreement-as encapsulated in sulh- are not known to the modern Western intellect, the process through which sulh is reached may differ in Western and Islamic systems.6 Some levels of Sulh can be called mediation, like when an individual go in between spouses to broker a deal over an impasse. It can be arbitration when two arbiters are pooled from the two families of spouses to save a marriage, their award is binding on the spouses; conciliation may come in where families or communities are disputing or quarrelling. 7

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Managing marital disputes in malaysia. p.130 Ratno Lukito. Religious ADR: Mediation in Islamic Family Law Tradition. p.333 Article; Dispute management in Islamic perspective Ibrahim Barkindo. The Role of Traditional Ruler in Dispute Resolution: An Islamic Perspective. p.4.