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TOWARDS MEDIATING FAMILY DISPUTES: A GLANCE AT THE EGYPTS FAMILY COURT

NURUL AIN MOHD AZAHARI G 1127712 ALTERNATIVE DISPUTE RESOLUTION IN ISLAMIC LAW (SULH) LAW 7140 DR. NORA ABDUL HAK

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INTRODUCTION

January 26, 2000 - Egyptian Parliament passed procedural Law No. 1 of 2000. - Such Law No. 1 of 2000, for Reorganization of Certain Terms and Procedures of Litigation in Personal Status Matters, cut down the 600 clauses of previous procedural laws to mere 79 clauses. - The law replaced Decree Law of 1907, Decree Law of 78/1931, Decree Law 462/1955, and Part 4 of Code of Civil and Commercial Procedural. - The goal of this law was to address the problems of backlog of cases and inefficient legal procedures, challenges which were mostly confronted by women since they tended to be the majority of claimants in family law cases

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ARTICLE 20 OF THE LAW NO.1

Article 20 gives women the right to file for no-fault divorce (known as khul') in exchange for forfeiting their financial rights. - The law stipulates that the female litigant forfeits the dower and maintenance in the waiting period following divorce in exchange for divorce. - There is a period of 90 days arbitration during which reconciliation is attempted by court appointed arbitrators before the court judgment is issued .

- Before such reformation,wife had to petition in court and citing marital misconduct by the husband. - Due to inefficient procedures and the backlog of cases; they had to wait several years to terminate their marriages. - The amendment made gives women the right to seek a khul' divorce, although not offering them financial relief, it gives them a means to sever a difficult or abusive relationship. - However, still have to pay a steep price in a khul divorce,i.e they must return the dowry they received upon marriage.

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ARTICLE 17 OF THE LAW NO.1

Article 17 gives women in unregistered marriages which was known as urf marriage the right to file for divorce. - The idea behind this law is to give women a way out of unregistered marriages, which are not recognized by law and thus deprive women in such marriages from legal rights such as spousal maintenance, alimony, and inheritance. - Traditionally, men had unregistered marriages that lacked protections for women. - These marriages previously were not recognized by law and thus deprived women of legal rights such as spousal maintenance, alimony and inheritance.

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FURTHER REFORMATION

2004 - two more legal reforms were passed : Law 10 - introduced new family courts with the aim of establishing a legal system that is non-adversarial, attentive to the best interests of the family, accessible, and affordable - abolishment of appealing court sentences at the level of the Court of Cessation. - This means the sentences of the First Instance Family Court can only be appealed at the Court of Appeals whose verdict then becomes the final one. Law 11 - set up a government run Family Fund, called Nasser Bank, to facilitate the implementation of court orders for alimony and child maintenance

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MEDIATION : ITS PATTERN & PROCEDURES

plaintiff (or her lawyer) would come to the office to submit a request for mediation

Mediation office would open a mediation file and request relevant documents, depending on the case

mediation session was scheduled and a summon paper was sent out to the other party in the dispute

Mediation takes place and it is conducted over a period of 15 days. Upon consent of the 2 parties, it can extend to 2 ++ weeks if there is possibility settlement

SUCCEED -agreement signed by both parties during the mediation in the Maktab Taswiyah -endorsed in front of the Chief of Maktab Taswiyah -considered the same as the order from the Court - referred to the Family Court to execute the order

FAILED -the report of the discussion will be submitted to the legal officer -legal officer will prepare a report to the Court -submit the report within 7days before the next proceeding - disputants can file the court case within a week

Normally, if the number of the scheduled sessions for a day was particularly high, a session could be conducted by one or two specialists at the utmost.
It was very rare for the three specialists to conduct a session together. Another factor that contributed to this was the fact that in many cases only one disputant was present and the legal representatives, or only the latter. Even when both disputants were present and there were sufficient specialists in the office, it was not always the case that the three specialists sat with the disputants. There were few things that all three specialists were expected to do in order to conduct a session on their own, namely; to obtain all needed documents from the disputants to record the session and the reached agreement (if one is reached) properly since this document was legally significant to interact well with the parties present in the session work towards reaching an agreement between them.

legal specialist will chair the Taswiyah Council; inform the parties of the legal aspects of the case; provide legal guidance; provide an agreement after the acceptance of the parties on the Sulh; and provide a report for the court if the Sulh is not succeed social specialist will look into the social aspects of the conflict with the aim of reaching a resolution and settlement; provide a report or suggestion for the succeeded Sulh cases (to be submitted to the chair person); and provide a report for un-succeeded Sulh cases to be submitted to the legal officer psychological expert dealt with the psychological factors pertinent to the conflict as well as with the psychological conditions of the disputants.

SULH COUNCIL ()

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IT'S SHORTCOMINGS: TO BE REFORMED

the process is not confidential; the parties do not even need to be present - Law No. 10 of 2004 : PRESENCE of either or both disputants in mediation sessions is NOT OBLIGATORY -it is legally sufficient for the legal representatives of the disputants to attend the mediation sessions on their behalf -their legal representatives have no incentives to facilitate on resolution of the case.

litigants often do not cooperate with the process - reject the very idea of formal mediation. - argued that it was inappropriate and offensive for couples to recount intimate details of their lives to mediation specialists. - formal mediation was unnecessary because existing, local mechanisms of mediation (e.g. relatives and community elders) were routinely available before a couple resorted to court.

- do not have a clear understanding about how mediation fits into the legal process in family courts. - the disputed parties with low-level education do not understand that mediation was a pre-litigation (though compulsory) step. - pointed to the poorly equipped work place and thought very little of the specialists mediation skills.

lawyers have a very strong belief about the incompetence of most mediation specialists. - claimed that most specialists were low level government employees who did not even have college degrees and lacked the education and training that was needed to mediate between disputants

lack of adequate resources and training offered to those required to operate the system. - offices consist of small and crammed rooms with insufficient number of chairs for the mediation specialists and disputants - more than one mediation sessions is held in the same room with no partitions or other means of maintaining the privacy of the disputants

4.0 REFORMATION & RECOMMENDATIONS


the need to establish a code of professional mediation specialists with excellent mediation skills: - the ability to communicate with disputing parties -to guide the process of mediation -to be impartial but also cognizant of any differential power relations between the disputing parties - to ensure that the vulnerable disputant is not disadvantaged by their lack of power compared to the other party

mandatory mediation saves time and effort that would be spent unnecessarily on litigation. - yet, it can lead to discrimination against the weaker disputant - e.g.: the more powerful disputant may deliberately not show up for mediation sessions, or choose to hinder the mediation work by being hostile and uncooperative

FAMILY JUSTICE PROJECT


December 2006 - the Ministry of Justice & the National Council for Childhood and Motherhood (NCCM) launched The Family Justice Project aims & objectives: to upgrade the capacities of mediation offices proper training programs for mediation specialists philosophy and vision of family courts mediation skills standardized procedures and practices for carrying out their roles.

targeted mediation offices in Giza, Menya, and Port Said - raising awareness of family court, positive parenting, and reconciliation techniques among Egyptian families and the general public - establishment of counseling offices inside NGOs to provide counseling and mediation services to families - providing child protections services