Family Mediation and Arbitration Practises in Saudi Arabia
Fulya OkurSociological and administrative issues arising from family disputes and increasing divorce rates have been among the significant problems of the 20th century. Family mediation, one of the methods used to address these issues, has gained importance as a solution shaped by different cultures and beliefs. In Türkiye, there are plans to implement mediation as an alternative dispute resolution method, with a prevailing understanding that European-originated methods could be employed in this process. However, considering the cultural differences between Europe and Türkiye, there is also a tendency towards developing a model that aligns with Türkiye’s cultural structure, which is believed to yield more positive and beneficial outcomes for Turkish society. Indeed, various academic studies are being conducted to pave the way for the creation of a unique system developed by benefiting from the experiences of countries that have recently implemented such practises. This study examines the family mediation and arbitration practises of the Kingdom of Saudi Arabia, which bases its applicable family law on Islamic law and maintains an established Islamic cultural framework in its social life, with the aim of contributing to existing research.
Suudi Arabistan’da Aile Arabuluculuğu ve Hakemliği Uygulamaları
Fulya OkurAile içi anlaşmazlıklar ve artan boşanma oranlarının ortaya çıkardığı sosyolojik ve idari sorunlar, 20. yüzyılın önemli problemleri arasında yer almıştır. Bu sorunları çözmek için kullanılan yöntemlerden biri olan aile arabuluculuğu, farklı kültür ve inançlara göre şekillenen bir çözüm yolu olarak günümüzde önem kazanmıştır. Türkiye’de de arabuluculuğun, alternatif bir uyuşmazlık çözüm yöntemi olarak uygulanması planlanmakta ve bu süreçte Avrupa kökenli yöntemlerin kullanılabileceği yönünde bir anlayış öne çıkmaktadır. Diğer yandan Avrupa ile Türkiye arasındaki kültürel farklılıklar göz önünde bulundurulduğunda, Avrupa uygulamaları yerine Türkiye’nin kültürel yapısına uygun bir modelin geliştirilmesinin, Türk toplumu için daha olumlu ve faydalı sonuçlar doğuracağına dair bir yönelim de mevcuttur. Nitekim son yıllarda uygulamaya geçen ülkelerin deneyimlerinden faydalanarak geliştirilecek özgün bir modelin oluşturulmasına imkân sağlamak için çeşitli akademik çalışmalar yürütülmektedir. Bu çalışmada, yapılan araştırmalara katkı sunmak amacıyla, mer’î aile hukukunu İslam hukukuna dayandıran ve toplumsal yaşantısında İslam kültürü yerleşik olan Suudi Arabistan Krallığı’nın aile arabuluculuğu ve hakemliği uygulamaları incelenmektedir.
The increase in divorce rates has become a significant issue in almost every society worldwide, and the resulting heavy caseload in courts has led to serious sociological and legal consequences. The inability to resolve disputes in divorce cases for many years prevents justice from being timely and properly administered, adversely affecting not only the parties involved but also all individuals directly or indirectly associated with them. This situation can lead to broader social problems and weaken the family structure within societies. Based on these realities, various academic and administrative studies conducted towards the end of the 20th century revealed that traditional judicial methods were not sufficiently effective in resolving family disputes. In contrast, these processes were found to intensify conflicts further. Consequently, there emerged a strong tendency to favour alternative dispute resolution methods, such as family mediation, over existing methods. In line with this trend, the Council of Europe issued a recommendation advocating the use of family mediation in family disputes. This recommendation gained widespread acceptance across Europe, and family mediation practises quickly became integrated into legal processes and widely adopted. Within this context, it is planned that family mediation will be incorporated into the legal system in Türkiye as an alternative method.
Türkiye has traditionally achieved European standards in its legal and social development over the past century. As a result, European models could be employed in the mediation practises expected to be implemented in the country. However, Westernoriginated mediation models, particularly divorce mediation, primarily focus on protecting individual interests to the highest degree and alleviating the caseload on courts. There is considerable debate over how compatible this model is with Türkiye’s cultural and social structure. The family structure in Turkish society is shaped by Islamic law and traditional values. Islamic law plays a crucial role in the formation and maintenance of the family. Some studies on this subject suggest that, due to this fundamental difference, a unique mediation model that aligns with Türkiye’s cultural and religious structure needs to be developed. Accordingly, it is argued that a mediation method compatible with Islamic teachings and systematised according to these principles would be more appropriate for addressing the issues and meeting the needs of the Turkish society. Furthermore, adopting an approach that considers cultural sensitivities in the preservation of family unity and the administration of justice in divorce processes would contribute to making the legal system more harmonious with the societal structure.
It is recommended that legislators take these discussions into account and develop a mediation model suitable for Türkiye’s sociological and cultural realities. In this context, a project titled “Family Mediation-Arbitration in Islamic Law and Contemporary Practises” has been carried out by academics and students from the Department of Islamic Law at Istanbul University to explore the applicability of Islamic mediation models in Türkiye. Supported by TÜBİTAK, this project conducted extensive research based on the premise that mediation-arbitration practises rooted in Islamic law norms are more compatible with Türkiye’s sociological structure compared to European models. In this context, the family mediation-arbitration practises of Muslim communities in various countries such as the United Kingdom, Malaysia, Morocco, Egypt, Jordan, Saudi Arabia, and the United States were investigated. Among these countries, the practises of Malaysia, where modern law and Islamic law are applied together, and the United Kingdom, a secular state that allows its Muslim minority to resolve family issues within the framework of Islamic law, were closely examined through field research.
The findings of the project will be shared with relevant institutions such as the Ministry of Justice, the Mediation Department, the Ministry of Family and Social Policies, and the Family and Religious Guidance Department under the Presidency of Religious Affairs. This will contribute to providing model examples for the family mediation expected to be implemented in Türkiye in the near future and to taking concrete steps to enhance the applicability and social acceptance of Islamic family mediation based on Islamic law in Türkiye.
In this context, the practises of Saudi Arabia, where organising the legal system and legal practises according to Sharia principles is a constitutional requirement, present a noteworthy model. Accordingly, our study examined the historical development, operational structure, institutional frameworks, and integration of family mediation and arbitration processes into the legal system in Saudi Arabia, reaching the following summarised conclusions:
In Saudi Arabia, mediation and arbitration are implemented as two separate methods. These practises have been established as a legal obligation tied to adherence to Islamic principles, with peaceful resolution aimed at preserving family unity as the primary goal. In recent years, changes in the legal system have contributed to the creation of the necessary administrative structures for the more effective functioning of mediation and arbitration processes.
Arbitration is carried out as a judicial practise under the supervision of the courts and involves a formal legal process. It allows for the detailed and meticulous examination of disputes between spouses, contributing to a more efficient functioning of the judicial process. This method, which eases the workload of judges, enables a thorough handling of disputes between the parties. However, no concrete and lasting evidence has been found that arbitration provides significant and lasting contributions to the preservation of family unity. Although a specific regulation governing arbitration has not yet been established, the reasons for resorting to arbitration and the powers of arbitrators are defined in the Ahvâl-i Şahsiyye regulations. This regulation can be considered an important step towards developing a more systematic and institutional structure for arbitration.
On the other hand, mediation is more flexible and can be applied in both judicial and non-judicial processes. Judicial mediation is conducted under the supervision of the courts, while non-judicial mediation is carried out by private institutions and independent mediators in collaboration with the courts. Unlike judicial arbitration processes, mediation is conducted with the cooperation of the state and civil society organisations to meet the needs of society. This cooperation helps mediation reach a broader audience and plays an important role in ensuring social peace. Civil society organisations serve as supporting institutions in these practises, which have been integrated into the state’s judicial system, thereby contributing to the effective implementation of mediation both at the official and social levels. This approach demonstrates that a balance has been struck in Saudi Arabia’s family mediation and arbitration processes between preserving Islamic values and meeting societal needs. Official statistics and reports from mediation associations show that mediation has been successful in preserving family unity and resolving disputes between parties.
Due to the lack of comprehensive scientific studies on official mediation that have emerged in the last decade, the exact content of the reconciliation methods used in mediation centres has not been fully determined. However, the following conclusions have been clearly reached: the organisation of mediation practises in Saudi Arabia under the condition that they do not contradict Islamic Sharia, the obligation of mediators to adhere to Sharia, and the requirement for them to be well-versed in the relevant sections of Islamic law clearly indicate that the Saudi Arabian mediation-arbitration model is based on Islamic law. Additionally, these practises, which are organised in a manner consistent with the customs and traditions of Muslim society, are shaped with consideration for the requirements of the modern world and scientific developments.
The family mediation-arbitration model in Saudi Arabia provides an important example for all Islamic jurists regarding how the classical period rules of Islamic law have been updated and applied in the modern era, and how these practises have been adapted to the scientific developments and societal needs of the modern world. The findings of this study offer significant data for jurists who advocate that the family mediation expected to be implemented in Türkiye should be structured according to Islamic principles in a manner that aligns with the beliefs and customs of the Muslim community. These findings reveal the possibility of designing Türkiye’s mediation practises in a manner similar to the Saudi Arabian model, based on Islamic law principles and simultaneously addressing the needs of the modern world.
