Effectiveness of mediation in resolving child custody disputes in the Syariah courts : a case study in the Northern states of Malaysia

Abstract

Mediation, one of the Alternative Dispute Resolution (ADR) methods, is gaining increasing acceptance in modern culture. The practice of mediation, or ṣulḥ, at the Malaysian Syariah Court addresses a range of issues related to Islamic family affairs, including child custody disputes. Ṣulḥ is a non-litigation approach used to resolve problems amicably and harmoniously. The government’s initiative to adopt ṣulḥ in 2001 has reduced the backlog of cases, sped up conflict resolution, and proven to be an efficient technique for settling disagreements amicably. Islam promotes the use of ṣulḥ as a means for resolving conflicts because of its ability to human resources, facilities, regulations, and standard operating procedures are needed for the smooth operation of the mediation service. resolve a dispute without negatively affecting the existing relationship between the disputing parties involved. However, the statistics show that a significant number of parties do not attend the ṣulḥ process. According to JKSM statistics, only 52.1% of the ṣulḥ cases for child custody disputes at Syariah courts in Malaysia between 2016 and 2023 were successfully resolved, representing 12,592 cases out of 24,190. The statistics revealed that 8,211 cases, or 33%, could not proceed due to the failure of one or both parties to attend the Majlis Ṣulḥ. Based on the literature review, existing research on the implementation of ṣulḥ at the Syariah Court primarily focuses on various types of disputes. However, there is an insufficient study conducted on the effectiveness of the mediation (ṣulḥ) process in child custody disputes in the Malaysian Syariah Court using the quantitative method. Furthermore, there is a lack of research on mediation practices at the Legal Aid Department. Many reasons led to this study. One of the reasons is the lack of guidelines regulating the practice of sulh in child custody disputes at the Syariah Court. The study aims to evaluate the effectiveness of ṣulḥ or mediation in resolving child custody disputes in the Syariah courts of the Northern States of Malaysia i.e., namely Perlis, Kedah, Penang and Perak. Additionally, the study collected and evaluated data from Legal Aid Departments in the Northern States. It also aims to examine the theoretical framework of ṣulḥ in child custody in Islam, the law and application of ṣulḥ in child custody disputes in the Syariah Court, assessing clients’ satisfaction, identifying problems faced, learning from the best practices in Singapore and Australia, and providing suggestions and recommendations to enhance the mediation practice in the Syariah Courts. This study employed the socio-legal method, utilizing quantitative research designs, interviews to gather opinion, and observation to understand the law and the practical operation of mediation practices within the social context. The study involved a survey of 255 respondents, interviews with 38 individuals, and observations of mediation facilities in Perlis, Kedah, and Penang, as well as most mediation offices in Perak. The study promotes the use of mediation in child custody disputes. Positive results have been obtained from the study, as many of the respondents successfully reached a mutual agreement, and they also noted that mediation was a valuable experience. The study, among other things, suggests the need to appoint more mediators and staff in the courts, to upgrade mediation facilities, and to provide competent officers to handle cases. The inconsistency of the procedure for interviewing children during the ṣulḥ session should be addressed by preparing a standard operating procedure (SOP). The need for certified child counsellors is also viewed as vital in the mediation process. It is noted that mediation can be used to effectively resolve child custody disputes, but improvements in