Effective Divorce Mediation

Do those who sign the certificate as well as the witnesses know that they are obliged to help the couple during their difficulties?

BY KHALID IQBAL

Ali and Sadia (not their real names) had a difficult 18-year marriage. Ali, a carefree personality, made a good living and enjoyed spending on family and friends. Sadia, serious and controlling, also had a successful career but never felt the need to contribute to the household expenses, as is her right according to the Sharia.

Ali, who lost his job in the economic downturn, had little savings and expected Sadia to help. She refused. After struggling for months, they decided to separate and arrange shared custody for their three children. Being smart and knowledgeable, they agreed to what they felt were equitable and fair child custody and financial arrangements.

Things changed when they filed for divorce (talaq). The Sharia defines this term as untying the matrimonial knot. Uttering this term inaugurates a compulsory waiting period of three menstrual cycles during which the husband must provide her with all the amenities he did during their married life. This also serves as a cooling-off period to rethink and reconcile. Sadia, uninterested in reconciling, moved out.

Since divorce in the North American context falls under state laws, most imams and scholars opt for performing religious divorce after completing the court process. This post-divorce often prevents the couple from receiving guidance as to the spiritual, emotional and sometimes financial assistance involved during the process. They often find themselves isolated from the community, extended family and their social circles.

In many cultures, the attached stigma prevents couples from seeking help when they need it the most. Family and friends, who may be unaware of the couple’s marital issues until they announce their divorce, obviously cannot provide any pre-divorce support. Social media, with its ease of broadcasting rumors and gossip, can also have a negative pre-divorce impact.

It is important for such couples to interact with an imam who can guide them through the relevant religious injunctions, “A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by God. If you (judges) do indeed fear that they would be unable to keep these limits, there is no blame on either of them if she gives something for her freedom” (2:229).

When I counsel and mediate a divorce, I remind both spouses, “They are your garments and you are their garments” (2:187), alerting them to the fact that a divorce case is like stripping off their garments. As they don’t want to broadcast their nakedness, they should not air each other’s shortcomings and deficiencies. Although doing so may benefit a party in the short term, it brings life-long hurt and guilt. I specifically guide them through this verse, to ensure that the discussion and terms are equitable and beneficial, especially when children are involved.

COUNSELING, MEDIATION AND ARBITRATION In most cases, the decision to divorce is due to long-simmering issues. In some cultures, its unacceptability causes the couple and their children to keep it a secret during a time that is most stressful and disturbing.

Marriage is a community affair that brings the families and community together in happiness. Those who sign the certificate as well as the witnesses are obliged to help the couple during their difficulties. Thus, the decision of a possible divorce affects the children as well as the extended family and friends. Before such a decision is made, family elders and religious leaders should be allowed to attempt reconciliation or reach an equitable separation agreement. Family members know them and would, hopefully, have their best interests at heart. If they are sincere, a mediator might help them resolve their issues by explaining the

divorce process’ steps and consequences of each decision on the couple and the children.

The court ordered Ali and Sadia to seek mediation before the final divorce and to devise an adequate plan for dealing with parenting, financial and other issues in their families’ best interest.

LESSONS LEARNED If you have a choice, look for and select a mediator who has good reviews of being impartial and willing to work with his/her clients. Here are some of our recommendations.

• Realize that your children need both of you and vice versa. As you are the only biological parents they will ever have, they will need you to cooperate in the future even after you remarry. Thus, consider your parenting plan and how you will handle child and spousal support.

A good mediator helps you negotiate a balanced parenting plan that allows each of you to help them grow, excel and thrive. Child custody is a very serious issue. For example, you have to think about which days — especially holidays — will be spent with which spouse, who will pick them up

START THE PROCESS BEFORE GOING THROUGH THE COURT SYSTEM, FOR THIS IS THE TIME WHEN THE COUPLE MOST NEEDS A NON-JUDGMENTAL, UNBIASED AND SENSITIVE INTERMEDIARY. FAIRNESS AND EQUITABLE TREATMENT OF BOTH PARTIES ARE THE KEY.

• Understand the mediation process’ scope, how it’s conducted, its limitations and how the courts may view your agreed-upon agreement negotiated through mediation. • Check with someone who has gone through the process or do your own research. Remember that the focus is on both of you and no one else. So, take the time to read, evaluate and view the result thoroughly because it’s your life. • Realize that you’ll pass through emotions like grief, resentment, anger, sorrow and winning over your partner. Don’t become a victim of them so that you can negotiate a settlement with wisdom. • Ask if you can bring an elder and prepare yourself in terms of financial, income, expenses and other relevant information. • Gather and organize all information on your assets and liabilities, capital gains, bank account, investments, retirement plans and mutual funds. Have your accountant calculate how much you will pay in taxes if you cash in your retirement plan. • Determine the value of your fixed and moveable assets (e.g., vehicles, jewelry and house). • Provide your income tax returns for the last three to five years, as well as any interest you might have in a business, and the cash value of your life insurance. and drop them off, not to mention how their expenses will be met.

Both parties should realize that courts like fair and impartial agreements. Realize that if the court views the agreement as biased, the presiding judge has the authority to issue a formula-based decision that disregards each party’s personal situation. Both mediators and arbitrators must realize that they are not marriage counselors. If they begin to think that they are, the parties usually choose not return to the table. After all, this is the time for devising realistic and practical arrangements for couples who have no desire to reconcile.

Imams or family members who assume this role can provide a neutral environment in a mosque and remind them of Islam’s method of conflict resolution. In addition, this lessens the financial burden associated with going to court and can reduce everyone’s level of distress.

Muslim couples thinking about getting a divorce welcome the opportunity to resolve their differences through the Quranic process, “If you (who believe) fear that a couple may break up, appoint one arbitrator from his family and one from hers” (4:35). Essentially the reference to arbitrate suggests the appointment of two elders: one by each party. Reconciliation may be the primary objective, but other verses allow either spouse to petition for divorce.

SEEKING PROFESSIONAL MEDIATION Start the process before going through the court system, for this is the time when the couple most needs a non-judgmental, unbiased and sensitive intermediary. Fairness and equitable treatment of both parties are the key.

Mediation can help them reach agreement about financial matters and child custody, whereas minimizing the involvement of family members might lessen the danger of fueling conflict between the separating spouses. For their own peace of mind and their children’s well-being, mediation sessions can be convened swiftly and can often achieve more lasting agreements than adversarial court procedures.

The couple must realize that no matter how bitter the divorce is, they will need to communicate with each other for their children’s sake, whether it is for health, education, special activities or events in which both of them would like to take part. A good, mediated contract can help with this.

Despite the mediator’s efforts, Ali and Sadia had a bitter divorce and child support matters went to court. Sadia decided not to work, which meant that Ali had to pick up the child support tab and make the payments in full and on time. ih

Khalid Iqbal is founder of Rahmaa Institute (www.rahmaa.org), which focuses on issues related to marriage, conflict resolution, divorce, domestic violence and anger prevention. In his capacity as an author (“Anger and Domestic Violence Prevention Guide for the Muslim Community”) and speaker, he has developed a comprehensive eight-hour premarital counseling course.