Arbitration and mediation (tahkim)

Principle and place of arbitration (tahkim)

Arbitration (tahkim), like judgment, is a means of settling the dispute and fixing the holder of the right; the Quran establishes it for the couple: "If you fear a breach between the two, appoint an arbiter from his family and an arbiter from hers" (sura an-Nisa 35). The jurists require of the arbitrator qualities similar to those of the judge, but he remains of a lower rank: his authority is limited to those who chose him, while the judge's competence is general. Abu Yusuf: arbitration cannot be suspended on a condition nor made relative, unlike judgment, for the judgment shares the nature of amicable settlement.

The scope of arbitration

Agreement of the scholars: no arbitration in the rights of Allah such as the punishment of the illicit relation or theft: that belongs to the ruler or the judge, not to the arbitrator. Hanafis: no arbitration either in the punishments and retaliation, for persons cannot permit their own blood; the proper matter of the arbitrator remains property, each school detailing the cases.

The revocation of the arbitrator

During the inquiry, before the sentence: Malikis (one view), Shafi'is (in the position) and Hanbalis (one view) allow either party to revoke the arbitrator, his consent not yet having produced an effect. Opposing view: Malikis (the view preferred by Ibn Farhun), Shafi'is (one view) and Hanbalis (in the position): revocation is no longer permitted, otherwise each of the two parties would return as soon as an opinion displeases it, and the purpose of arbitration would vanish.

Practical note on arbitration and mediation (tahkim)

Arbitration is best framed from the start: define in writing the object of the dispute, the powers of the arbitrator and the commitment to accept the sentence. The choice of an upright and competent arbitrator is worth more than a long trial.