This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, Zaynab..
written by Zaynab Gul
I am Zaynab – an Australian, a Muslim, or better put: a true blue Muzzie. Over the last two and a half months, I studied ADR and the very useful role that it plays in resolving conflicts between parties outside the confines of the court system. The more I learnt about the purpose of ADR within the Australian framework, the more I wondered why a process that is commended for its flexibility fails to accommodate for cultural and religious practices.
Given just how diverse Australia’s population is, it’s not hard to see why our state and federal legislations sideline culture and religion to create a uniform set of rules and regulations. But in an area like ADR, where the processes are no doubt more flexible and informal, it would make sense for Australian’s to be able to draw on their personal values and beliefs and use them to inform the approach taken to dispute resolution.
Our country’s ADR system didn’t come out of the blue. Instead, the western world’s interest in ADR first sparked in the 1960’s, and has developed over the recent decades to form ADR as we know it today. Though the 60’s may have given birth to ideas around ADR in the west, the practice itself existed amongst cultures and religions for many years prior.
Taking Islamic law as an example, over 1,400 years ago, the Qur’an not only established ADR as a tenet of civil justice, but also codified it with clear rules and regulations. There are also traces of ADR present in the customary law of our country’s first people. So, if ADR has been tried and tested for many centuries amongst various religions and cultures, why is the Australian ADR space so reluctant to recognise and learn from them?
Reshaping the ADR space?
As an Australian Muslim, I expect to be supported in being able to practice my religion, so long as it is in line laws of the land. Ancient Islamic law features processes like Sulh (which can be likened to western mediation) and Tahkim (the equivalent of arbitration). Though the nitty gritty of the rules may differ between the west and Islam, the basics are pretty much the same; both encourage the efficient and peaceful resolution of disputes.
A peaceful co-existence of religious based ADR and a western legal framework is not impossible. It’s been done for decades in the UK in response to the country’s growing number of Muslim migrants. There is a growing number of Muslims in Australia, given that Islam is the second most prevalent religion in our country.
Whether it be through the establishment of state sanctioned Islamic tribunals or the backing of religious mediators, there are many ways in which Islamic ADR can be recognised in Australia. As a country, we encourage diversity and are happy to embrace it in terms of food and entertainment, but when it comes to law, there’s clear hesitation.
It’s a long shot to call for a drastic change overnight. The first step for us all is to foster comfortable conversations about change and acceptance in an area like ADR where the law has the benefit of flexibility.