Comparison between Arabic and Malay Customary Dispute Resolution Methods

In Arab culture, honour is a very important value, being a function of tribal identity: thus conflict arises simply when there is a threat to honour. Bedouin life was harsh and nomadic, violent raids and counter-raids upon neighbouring tribes being an acceptable mode of gaining food and other needs. Bedouin values thus emphasize tribal cohesion and loyalties, and threats to the honour of an individual, is accordingly a threat to the honour of  the tribe. Dishonour to a member (perhaps by the capture of a wife or daughter) or death caused to an individual can conflagrate to tribal conflict giving rise to endless cycles of vengeance. Survival of the tribe depends on the timely resolution of disputes and plenty of exhortations to this end appear in the Quran[1]. Family disputes, being the core of tribal life, are particularly addressed[2]. Even Arabic townspeople were tribal in social structure, thus the cohesion and survival of tribe remains a priority. Traditional Middle Eastern dispute resolution mechanisms has the centrifugal force revenge-forgiveness.

There appears to be several techniques commonly used in Arabic culture, including counseling (nasihah), conciliation (sulh), arbitration (tahkim) or mediation/intervention (wasaata, tawasut, alshafaa, aljaryu, husnu al-sifara). The outcome becomes a concluded contract.

The process of sulh or conciliation is often used in cases of wrongful death claims, as retribution in terms of the life of the perpetrator is often the demanded recompense. Often, the family of the guilty party would initiate the process for fear of retribution. The appointment of a third party consisting of a panel of trusted elders (jaha) signals a declaration of temporary truce (hudna) usually accompanied by a token payment of good faith (arwa). Through shuttle diplomacy (whereby the conflicting families do not meet), a series of concessions and trade-offs are obtained, ending in the payment of blood-money (diya in cases involving death, or taawir in other cases) in a public ceremony of musalaha involving a ritual of seeking and giving forgiveness.

The process of tahkim might take the form of conflicting parties seeking an opinion from a respected legal scholar (mufti) who would engage in a process of in-depth research to find the applicable legal rules on the subject. The opinion is given, and although not binding, will be given considerable weight.

The process of wasaata is describes as “walking between disputants” whereby the intervenor in a non-binding procedure seeks an amicable settlement by proposing solutions to the parties.

Malays, by contrast, were sedentary farmers and fisher-folk who were governed by adat on a day to day basis. There are two sets of adat (custom) followed by traditional Malay communities: adat pepatih (a matrilineal custom) and adat temenggong (a patrilineal custom). Adat temenggong is modified through the influence of Islamic law to the extent that it almost mirrors Islamic law in norms and administration.

 In general, in traditional Malay society, people who allow a conflict to reach a destructive stage are considered anti-social, the emphasis being on familial and community peace and harmony. The identity of the Malay is intricately linked to  “adat” that imposes very strict social rules and etiquette to the conduct and language of the person.  In Malay literature, there is no concept of law as we know it today, but “adat” is supreme, laying down the rules for social engagement. At community level, harmony and togetherness are the most important values, therefore resolutions affecting community are induced by the concept of selaras (unanimity).

At the personal level, adat ensures the observance of dignity and  “muka” (face) whereby any affront to the person’s face will bring deep shame and inflict a wound to the Malay psyche. Since raised voices, anger and harsh words (affecting the harmony of the environment) are deemed impolite, the Malay would internalize the offense giving rise to “amok” in some rare cases, whereby the person lashes out in a rampage of rage and anger, attacking and killing anyone in his way.

Since face is important, Malays prefer not to publicise disputes, turning to the village headman (ketua kampong), or other respected figures within the community such as the imam of the mosque or an elder within the family. The 3^rd party would often give advise to the parties and parties would accept the advise to achieve peace so that harmonious relationships can be restored. Parties may be asked to “beralah” (give way) whereby the older would give in to the younger on the grounds of immaturity, or conversely “bagi muka” (give face) to the elder by the younger. Almost all disputes are settled in this manner, most times with simmering resentments on the part of the party forced to give the concession. Once a year, on the Eid everyone asks others for forgiveness for intended or unintended offences, ostensibly clearing the slate for the next year.

Where a conflict is more intractable, it would be escalated to the chieftain or escalated to the Sultan, being the final arbiter of all things in the territory. The Sultan’s mythical divine qualities result in unquestioning obedience by the abject subject, for fear of the curse of the Sultan’s daulat (or majestic powers) being visited upon the person or family of the disputant. 

Although the modern Malay is less constrained by adat as his ancestors were, nevertheless the reluctance to wash dirty linen in public and the upholding of face is important. Disputes are therefore either brushed under the carpet or parties are forced to reconcile through concessions for the sake of harmony. It is rare that a “win-win” outcome would emerge. Otherwise, the modern Malaysian would turn to modern judicial institutions in seek of the upholding of their "rights", something introduced by the common law.

In terms of pre-legal action, it would seem that the modern Western style mediation (in particular facilitative mediation) is suitable to modern Malaysians to whom private and confidential methods would be more suitable in the preservation of "face" as compared to Arab values emphasising on the public and upholding of honour.

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[1] Al Quran verses 8:1, 4:35, 4:59, 4:65, 4:114, 49:9-10

[2] Al Quran verses 4:128, 5:2

Business Diplomacy: Resolving Disputes Through Mediation

Qatar is seeking mediation with its Arab neighbors to resolve the current Middle East conflict. The fracas began when Saudi Arabia, the UAE, Bahrain and Egypt cut diplomatic ties and shut their borders to Qatar on allegations of Qatari support for terrorist organizations. The source of the conflict was purportedly due to implanted false reporting in Qatari news by nefarious agents of another country.

In the Arabic culture, the use of “sulha” or “sulh” (similar to the mediation-arbitration of the West) is common. This method employs a third party committee (“jaha”) to effect shuttle diplomacy and proxy discussions between disputing parties. Normally, sulha is used to resolve victim-offender conflict that might threaten to tilt two families, and ultimately two clans or tribes into open conflict.

The utilization of mediation as a customary practice is widespread amongst native communities worldwide, and considered as the primary dispute resolution method in these societies. Resorting to courts and the litigation system is a 20th century phenomenon introduced by colonial powers. Notwithstanding, mediation is not an alternative but as demonstrated in the case of Qatar and its neighbors, a centuries old go-to tool in diplomacy. After all, before Qatar and its neighbours became states five decades ago, they were the tribes Al Thani, Al Khalifa, Al Sabah and Al Saud. 

So, why shouldn’t businesses too resort to this form of diplomacy in settling business disputes? Especially in societies where values such as face, honor, reputation and harmony are prized over profits and money. When direct negotiation between parties are deadlocked, mediation is useful for the following reasons:-

·     A mediator can invite each side to take a step towards one another, which for ego or organizational reasons, they could previously not do.

·     He or she can stimulate creativity on how to arrive at a mutually beneficial deal or how to by-pass the deadlock.

·     In private sessions, the mediator would allow each party to confide what they would otherwise not be able to express in the presence of the other party for fear of damaging bargaining leverage, and explore with the mediator any changes in their own position.

·     The mediator can invite both parties to express themselves and listen to both sides without anger, at the same time framing the views for understanding and acknowledgement.

·     The parties can explore compromise solutions or positions that either party alone would be afraid to propose.

As an alternative dispute resolution method to the traditional litigious framework, mediation brings too much value and efficacy to businesses to ignore. It saves costs, time and energy and allows executives to concentrate on what is important – building the business and making money.

Consult our experienced business mediators at www.mediate2resolveonline.com to explore more.

7 Steps to Resolve a Workplace Dispute with a Co-Worker

Conflicts are an inevitable part of life, and when present in a working environment, signal that employees are engaged and interested. What is important though is how these conflicts are handled and resolved. The most important thing is to address conflict immediately and constructively, before it turns the working environment toxic.

If you have experienced a situation where you and your co-worker simply cannot get along, but it is necessary for the working relationship that you continue coordinating with that person, you might want to consider taking the following steps to de-escalate, and potentially diffuse, rising tensions-

1.     Communicate your desire to sit down and talk.  You could do this personally, or with a respectfully worded email inviting him or her to have a chat. Take it outside the office environment, if necessary.

2.     At the meeting, set the tone for a collaborative approach and accept responsibility for your part in the dispute.

3.     Ask your co-worker his views on the disputed issue. Listen actively to what he says by paraphrasing what you hear, asking questions and acknowledging his concerns. Calmly allow your colleague to vent his emotions or frustrations, because this would be the best way to uncover his/her interests. Then assertively convey your views and your interests.

4.     Reality-check the assumptions underlying both your interests.

5.     Brainstorm some creative options for meeting both your interests.

6.     Check that the options are implementable.

7.     Finally, agree on the steps going forward.

If you find it difficult to navigate the discussions by yourself, you could suggest that a 3^rd party act as a mediator to facilitate the communication with your co-worker.

Contact Mediate2ResolveOnline.com if you would like our mediator to help you. You can take your discussions online, in a convenient, efficient and cost-effective manner.

When will you resolve your disputes? Try Mediation

Try Mediation to Resolve your Disputes

If you're wondering how you can resolve a conflict or dispute you're having with someone else, think about finding a mediator to help.

Check out our short talk on mediation and how it can help resolve your disputes in our What is Mediation? youtube video .

There are many ways or alternatives to dispute resolution other than litigation or violence. Consider this economical, effective and efficient process to achieve some peace and harmony in you life.

Opportunities for Value Exchange in Negotiations and Mediation

A few weeks ago, I coached middle executives in mediator skills. One of the questions I would ask each of those that I had the privilege of mentoring is: what are your strengths? Apparently, I had hit on a very difficult question, for although almost all of them were able to tell me where they wanted or needed improvement, none could tell me specifically what value they could bring to the table.

So here is the crux of this article. If you do not know your value and what you bring to the negotiation or proceedings, how will you be able to effectively conduct negotiations, whether as 3^rd party neutral mediator or even as one of the parties. All negotiations involve an exchange of value between parties, and each counterpart must feel that they obtain value as they give away value.

In a mediation situation, the mediator must know his/her own quantity and skills in order to extract the maximum value from the parties. This translates to the experience of the parties during the mediation, and whether they walk away feeling satisfied from the proceedings. Although satisfaction is an intangible outcome, it is measurable in the sense that if the mediator had not done his/her job properly, parties would be left feeling cheated or dissatisfied. Often times, any settlement or resolution achieved at the mediation, would be reneged upon or not carried out.

There are 2 aspects here-

·      Value brought by the mediator

·      Value of the pie contributed by both parties, and expansion of the pie through the value brought by the mediator

The first aspect, concerning value brought by the mediator in an interest-based mediation means the skills of the mediator in creating movement, uncovering underlying interests and helping parties to explore and create options as well as evaluating those options in order to guide participants to a resolution. This involves self-knowledge of the mediator of his/her own special talents and the toolbox that the mediator brings to the table in the management of the process.

The second aspect follows the first, because a self-aware mediator will also be able to bring out the full value of the dynamics, and not merely re-state the position of the parties and shuttle between one party to the other in a semblance of bargaining or horse-trading. Once the full extent of the parties’ interests has been uncovered and the available options discussed, then only can the exchange of value occur and even that in gradual stages through the guidance of a skilled mediator.

One of my observations from coaching is that new or beginning mediators tend to be solutions-driven, and in that mode, might exert unseen pressure on the parties to settle thereby overlooking any additional value that could be created and claimed by the parties, or worse, asking one party to give up value in exchange for nothing.

If you would like to learn more about exchanging value in negotiations or mediation or conflict resolution, email us at mediate2resolveonline@gmail.com.