Mediation in the USA and Saudi Arabia

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Abstract

The concept of mediation in relation to the Saudi Arabian law system remains an understudied issue. While the Islamic framework of conflict resolution implies that mediating a dispute between quarrelling parties is a communal good, actual mediation in the Arab world is limited to small cases and to family disputes. Thus, there remains a gap regarding professionally trained mediators in Saudi Arabia that can offer legal services in different aspects of different relationships. Furthermore, mediation is a beneficial aspect of any law system of any country since it can significantly reduce the typical costs and time dedicated to dispute resolution in the court system.

This paper outlines the benefits of mediation practice over other methods of conflict resolution and provides information on the history, culture, system, and satisfaction related to mediation in the United States and Saudi Arabia, making clear parallels and divergence. This paper is also dedicated to addressing the need for mediation in Saudi Arabia and provides advice on how the Western techniques and approach to conflict resolution can be applied in countries like Saudi Arabia. The cultural aspect of conflict resolution is also examined, namely, via a profound explanation of the cultural notion of Sulha.

This study is beneficial for identifying the differences between Eastern and Western approaches toward conflict resolution. While the Eastern approach is focused on providing good for an entire community, the Western approach is individual-oriented; therefore, a complete replication of Western frameworks related to mediation would never work in Saudi Arabia due to historical and cultural background differences. Some aspects of the U.S. experience with mediation can, however, prove efficient when put into the context of Eastern conflict resolution practices.

What Is Mediation?

According to Bercovitch, mediation is a “process of conflict management related to but distinct from the parties’ own negotiations, where those in conflict seek the assistance of or accept an offer of help from, an outsider to change their behavior or perceptions.”1 It is crucial to note that changes in perception and behavior are to be accomplished without physical force and without resorting to any higher authority. Within the limits of such a broad definition, then, mediators of a conflict or a misunderstanding between parties can adopt various approaches and take on a variety of roles.

The overall mediation rates on a global scale are estimated to be as high as sixty percent; however, recent surveys provide evidence that in reality, the ranges tend to extend between forty-five and eighty-two percent with significant levels of success.2 Thus, as stated by Bercovitch, mediation is close to being the only effective method for managing conflicts in the twenty-first century.3

When it comes to studies that investigate methods of conflict mediation, four unique approaches are outlined. While prescriptive studies focus on giving solid advice about how to successfully negotiate and mediate any type of conflict, others are more specifically focused on developing a complex but comprehensive model for resolving all types of conflict. The economic and game theory approaches seek to develop a mathematical scheme of mediation behavior. The latter approach attempts to blur the framework offered by the conflict mediation guidelines and instead bases the strategy around experiments and on actual case studies.4 While every approach provides some useful advice for successful conflict mediation, the last approach has indeed proven to be the most successful.

Benefits of Mediation

While conflict mediation does not always guarantee successful results, there are many excellent benefits that set this method of resolution apart. Because mediators typically possess a range of resources and strategies for conflict mediation, the process in and of itself can prove beneficial. Compared to litigation of a conflict, its mediation is less expensive; that way, it is often considered to be a more reasonable solution from an economic point of view.5

The second benefit of mediation is the rapid settlement of a conflict. In comparison to endless court case resolutions that can take months or even years, mediation offers a much timelier method of mitigating disagreements.6 Because parties in the majority of cases want the conflict to end so that everyone may get on with their business, mediation is beneficial for giving those involved a means for ending the conflict with a mutually satisfactory outcome—all within a reasonable and agreeable timeframe.

The next benefit of conflict mediation is that it aims to either preserve relationships in the most amicable and cooperative way possible or to terminate a poor relationship in an adequately peaceful manner.7 By addressing all interests of involved parties and doing so in an amicable way, the preservation or termination of the relationships will be accompanied by the win-win or lose-lose procedure of decision making.

Furthermore, the achieved results of conflict mediation are usually maintained over a long period of time. If parties do undertake the process of mediation, sometimes with the help of an independent mediator, they are more prepared to cooperate toward resolving the conflict or misunderstanding; subsequently, they seem to want the results of a successful mediation to be in place for as long as possible.

One of the most prominent and useful benefits of mediation is that it is characterized by the willingness of all parties involved to resolve the issue; thus, mediation is based very much on common interests and on making decisions in relation to which solution is determined to be most effective.8 Because mediation is conducted with the assistance of a third party that is not personally involved in the conflict, mediation is beneficial for establishing relationships among all parties that participate in the mediation process. It is important to mention that the process of mediation is never uniform; instead, it involves a range of decisions, situations, mediators, and resources.

Thus, mediation is beneficial for exercising thorough research on various dimensions of conflict termination. Furthermore, since conflict mediation covers a large spectrum of processes, ranging from formal forums to casual meetings, it facilitates research and action on a number of levels. This research and experience can help mediate future conflicts. Undoubtedly, mediation brings together a wide variety of mediators, ranging from international organizations to ethnic communities, that benefit the overall flow of communication and negotiation, subsequently resolving the issue in question.9

To conclude, in the majority of cases, mediation is a far more beneficial form of conflict resolution when compared to other methods. Because the majority of conflicts arise from lack of proper communication between parties, mediation is a method of resolution that provides parties with an opportunity to engage in a thorough conversation as well as the chance to learn to listen, to present a particular side of an argument, and to seek solutions that will be mutually agreeable.

With proper assistance from a third party, participants in a conflict are able to communicate more effectively. Mediation is also beneficial for finding new solutions in order to explore the issue and to resolve it appropriately. In fact, parties often create their own solutions during conflict mediation rather than being forced to abide by any decision made for them. Lastly, mediation, in general, brings about much more compliance as well as mutual satisfaction about the solution when compared with the cases of litigation or other methods of conflict resolution.

Mediation in the USA

History

The legal and cultural roots of mediation in the United States date back to the social and labor unrest that took place in the twentieth century. For instance, courts began using mediation to resolve the issue of crowded dockets.10 The community and court-based programs then expanded during the ’80s and the ’90s. These programs promoted mediation as an excellent alternative to the court because mediation offered conflicting parties a chance to determine their point of view and then combine that with creative management solutions, all leading to a much faster resolution.

System

In the United States of America, the state and federal law frameworks on the issue of mediation comprise a complex system of local rules of court, statutes, and common law rules of contract as well as codes of civil procedures. The modern mediation practices operate within a balance between the settlement of the conflict through court order and self-determination. With the emergence of legalism, states like Ohio, Florida, and California took responsibility for managing connections between legal trials and mediation as well as issues surrounding confidentiality, mediation incentives, and the establishment of standards that regulate the work of professional mediators active in the field of conflict resolution.11

Culture

The cultural rationale of mediation in the United States is based on the idea that this method of conflict resolution is the most ethical and beneficial for both parties. When mediating a conflict, it is advised to maintain realistic expectations for the success of conflict resolution.12 Most of the process depends solely on the extent to which parties participate in it; thus, conflict mediation relies on listening and evaluating every point of view. It is commonly accepted that the mediation process does not end until both parties reach an agreement and feel good about the final decision, which has been mutually made.

Furthermore, in the U.S., the role of mediators is highly valued. In every conflict, the actions of a mediator are predetermined depending on the nature of the issue itself; besides this, a mediator is always very clear about the vision and the manner in which the process will be conducted.13 The determined role of the mediator also encourages parties to harbor only realistic expectations about what actions they should also undertake.14

Satisfaction

A party’s satisfaction with the results of mediation depends on the mediator’s style, the final outcome, and the fairness of the procedure. Satisfaction with outcomes was explored thoroughly in a study conducted by Alberts, Heisterkamp, and McPhee. They collected data from local community mediation programs via surveys that assessed the perception of mediation participants with specific mediation experiences. According to the findings, the effectiveness of a mediator had the most impact on parties’ satisfaction; the mediator’s experience also influenced participants’ satisfaction, while the law background or age of the practitioner bore no significance.15

Mediation in Saudi Arabia

History

When discussing the history of mediation in Saudi Arabia, it is important to mention that there are three verses in the Qur’an that authorize the notion of mediation. In addition, to support the discussion, one could recall the story about the Prophet Mohammad, who was once responsible for conflict mediation between two tribes clashing over the reconstruction of Kaaba; since the clans failed to find a compromise, the Prophet assisted them by conjuring the initial solution that resulted in success for both sides.16

The modern history of mediation in the Arab world begins in 1959 with Jordan’s adoption of mediation and arbitration laws. The other Arab states soon followed; for instance, Saudi Arabia entered the tendency in the middle of the 1990s. Prior to that, Kuwait had accepted the legislation, and ten years ago the United Arab Emirates followed suit.17

Further developments in the sphere of mediation, along with the establishment of mediation centers in Arab countries, including Saudi Arabia, are likely to more effectively promote the use of mediation techniques as the most appropriate way for amicably resolving conflicts. For example, the adoption of the Law on Mediation for the Resolution of Civil Disputes (first adopted by Jordan in 2006) is one of the most significant trends in mediation in the Arab world as it offers a system for organizing judicial mediation in the Court of First Instance.

System

Similar to the system introduced in the majority of countries in addition to the United States, mediation in Saudi Arabia is a process in which a neutral party facilitates dialogue and negotiation between other parties that have specific disagreements. The object is to assist the parties to come to a mutual conclusion. In the majority of cases, mediation in Saudi Arabia is used as a method of investigating the facts related to a case.

It is, however, important to note that the Kingdom of Saudi Arabia (KSA) has not yet adopted the UNCITRAL Model Law on International Commercial Conciliation.18 In general, mediation, along with reconciliation, is the preferred way of resolving conflicts in the KSA. On the other hand, the roles of arbitrators and mediators seem to mix and merge, and KSA practitioners should keep this in mind. Thus, there are no defined frameworks for which role a party should take on—conciliating or mediating—since there is ultimately the freedom to choose which role seems most suitable.

The multi-tier clauses that need a combination of steps like negotiations and mediation are also not clearly defined in the Saudi Arabian law despite the fact that they are quite common. Such cases are widespread in construction contracts, engineering, and procurement, and they are indeed enforceable. If the mediation or negotiation steps are disregarded during the proceedings of cases like these, there is the inherent risk that a decision will be made by the judge alone, who may not take into consideration the opinions of conflicting parties.19

Culture

When discussing the process of mediation in relation to Saudi Arabia and the Arab world as a whole, it is critical to mention the cultural notion of Sulha. Sulha relates to the process of cutting off a misunderstanding through various means of mediation, settlements, and compromises; the primary aim of Sulha is intertwined with the facilitation of an attitude change among quarreling parties via restoration of the sense of determination, all without damaging the sense of honor.20

The result of a successful Sulha is a mending of damaged relationships between a conflict’s parties by repairing damages that emerged within the course of a conflict and affected both the participants of the conflict and the community at large.

The resolution of disputes in the Middle East is colored by the guiding principles of community, tribe, and family. Due to the tribal history of the Arab world, collective values are of primary importance when it comes to resolving disputes and everyday misunderstandings. Doron Pely mentions that the “individual’s life is considered to be an element of the collective life; thus, the individual and the collective are considered to be one and the same. Therefore, any attack on the individual is considered to be an attack on the group and vice versa.”21

Thus, the community is collectively responsible for the punishment or for the compensation of any member of such a community. This kind of social framework is vastly different from the “traditional” Western approach, which is predominantly individualistic in nature. When discussing Sulha, the community-oriented perspective is crucial since it has a serious effect on the essence of the dispute between tribes as well as on the imperative to resolve any inter-tribal, or clan misunderstandings, including those involving interpersonal quarrels.

Politologist Added Dawisha has linked Islam to the communal hierarchy and therefore has put the communal framework into a much wider resolution perspective related to both sociopolitical and historical aspects. He stated that before the establishment of the contemporary Arab state, “the core societal units in the Arab world were (and perhaps continue to be) the tribe, the village, and the extended family.”22 Dawisha was able to successfully emphasize a particular characteristic of the Arab culture that may be most important for an understanding of the benefits of a community-based conflict resolution.23 This characteristic relates to the Arab tradition of accepting the inherent hierarchical structure of a community, which is led by an authoritative figure at the top of this very hierarchy.

The preference of the Islamic states to choose Sulha over other methods of mediation is anchored in the assumption that it has direct connections to the “religious blamelessness” of the dispute participants. Furthermore, the obvious advantages of resolving a social conflict through reconciliation instead of adjudication are widely recognized since adjudication can possibly lead to hatred, anger, or resentment among parties of a conflict, most notably in the period just post-verdict.

When evaluating the vital importance of Sulha practice, it is worth mentioning that it is bound tightly by human rights as well as by the relationships among people and that it distinguishes compromise as the most suitable act—but only if it never violates the provisions outlined by Muslim law. In the majority of Arab states, a failure to mediate conflict through Sulha means that the dispute is then passed on to the jurisprudence of the formal court, which is responsible for resolving the issue by trying to convince the quarreling parties to come to a mutual decision. If, however, this attempt does not prove successful, adjudication would then be required.24

Satisfaction

In terms of satisfying parties involved in a dispute, there are no rules in Saudi Arabia that call first for mediation then litigation (except in the case of family disputes). Thus, when it comes to family quarrels and conflicts, the Saudi Arabian court first resorts to mediating the issue, and if unsuccessful, the case is then reviewed in court. This means that there is little done at this point for participants of the conflict to find satisfaction with the outcome.

There is sparse information available about how satisfaction occurs as a result of mediation in Saudi Arabia. Litigation is the closest method of conflict resolution, but it often takes ample time and significant effort. The process begins with a claim filing statement, which is then heard at the very first hearing. Historically, courts in Saudi Arabia are not eager to issue a default judgment when the parties are absent or do not agree on a mutual decision; however, recent changes in the process, dating to when King Abdullah began to support the issue of default statements, are poised to make the litigation process much more efficient and, ultimately, more effective.

When the default judgment is not issued by the court, the litigation process turns into a number of follow-up hearings during which the sides are to submit pleadings and then provide responses; also, in the cases where they reach satisfaction in their pleadings, as well as the satisfaction of the court, the case is ruled as closed.25

How Can Mediation in Saudi Arabia Be Developed, and How Can We Move the U.S. Experience with Mediation to the Courts in Saudi Arabia?

Islamic Mediation Techniques for Developing Mediation

The courts of any developed or developing country are filled with various cases that are submitted by citizens each and every day; however, capacity is of course limited in some courts, meaning that the courts cannot always offer clients satisfaction in a timely manner, especially since most related procedures are costly and require extended periods of time to play out. In order to help the courts in resolving public cases, alternative means of conflict resolution are to be established, carefully implemented, and then widely practiced.

One prevailing technique of conflict resolution is mediation, which is not yet practiced to its greatest potential in the Islamic world. Due to various external factors, the Islamic population is cautious of mediation since its credibility is regularly questioned. Furthermore, Islam has developed its own principles and techniques of mediation that can be called the “Islamic Code of Conduct for Mediation.”26 There is, however, no comprehensive Islamic code of conduct for mediation yet written and published in English. In the past, as well as now, mediation in the Islamic world has only been applicable to mild family dispute cases or in other simple disputes that do not require any specific litigation action. In such cases, mediation is conducted by the mosque imams or influential individuals in the society.

Today, the role of a mediator has become a very important profession that requires a strict professional code of conduct. Research conducted by Sirajuddinn focused on exploring the concept of mediation as well as its relation to the Islamic code of conduct, comparing it with the Qur’an’s verses, statements of Muslim scholars, and the ahadith of the Prophet.27

Sirajuddinn’s article, “Concept of Mediation in Islamic Jurisprudence,” explored the concept of mediation in the Islamic world and in turn compared it with the Western traditions of mediation.28 The scholar underlined the importance of religion in the complex processes of conflict resolution. Because religion predominantly dictates cultural values and norms for a population, it addresses crucial issues of human life, including freedom, faith, security, righteousness, or wrongfulness. Thus, religion is securely rooted in the social understanding of peace.29

Techniques for managing disputes are not new notions; in fact, conflict resolution was mentioned in the Qur’an. Islam has some notions in common with Asian cultures, all of which differ greatly from the Western methods of conflict resolution. Such similarities with Asian culture include dispute management, relationship structuring, moral persuasion, and achieving balance in the connections between individuals. In contrast, Western cultures focus on careful documentation as well as the application of general legal principles in regards to conflict resolution and target the flow of human relationships. Furthermore, it is common for Western countries to resolve issues with an adversarial approach and to define social and personal problems within the framework of individuals’ legal obligations or rights.

The Role of Culture in Developing Mediation Practices

When discussing conflict resolution in terms of Islam, it is worth mentioning the implication of the term “Islam.” Islam requires the “act of submitting one’s self to the will of God.”30 The submission to God involves the accomplishment of specific duties. At the same time, an outline of the primary principles of the relationship between man and God in Islam involves regulating the relationships between people on both collective and individual levels.

Therefore, Islam establishes legal and ethical frameworks for social behavior. Within the framework of dispute resolution, Islam outlines a set of both complex and more general principles that relate to the authoritative method of regulating conflicts. Islam is both guiding and defining, and it provides a broad platform for conflict resolution and possible negotiations.31

In contrast to Western conflict resolution approaches, where the priority is placed on abstraction and conflict resolution, the Islamic approach frames the conflict in the context of the communal concern, underlining the importance of maintaining as well as repairing relationships within a community. Thus, Muslim attitudes toward conflict resolution are grounded in religious values and rituals, in the importance of social connections, and in the existing social traditions of a community.

Of great importance are connections between the group and personal identities, between the group and personal responsibilities, and between the focus on public status and accomplishment of restorative justice in the framework of ongoing relationships. While mediators in the West are certified professionals that offer services as neutral third parties in the process of conflict mediation, the Islamic approach implies that the mediator is an unbiased third party that has connections to disputants and is interested in the conflict coming to an end.32 There is a prevailing sense of the common good and standing up for the entire community when it comes to resolving conflicts in accordance with the Islamic framework.33

In Saudi Arabia, the House of Saud is the dominant political body that determines the majority of affairs within the country.34 Similar approaches are also prevalent in other states in the Arabian Gulf. Again, there is a tangible superiority of group values over the individual values that are much more common in the United States as well as in the rest of the West. Thus, when exploring the concept of conflict resolution in terms of cultural background, preserving the communal structure in society is of huge importance. When developing a system for mediation in Saudi Arabia, cultural concepts and ideologies become the common platform for conflict resolution between parties since there is a unified goal of benefiting the community rather than bringing good only to oneself.

The Islamic context of conflict resolution is linked to ending the hostility between parties in an amicable way and to achieving Sulha (compromise).35 Sulha can also be understood as a kind of social contract that binds quarrelling parties on the community level as well as on the individual level. Thus, the Islamic tradition of dispute resolution places a major emphasis on performing a duty for the community.

It is also commonly accepted that the good of the community is far more important than the good of a separate individual.36 Relationships are guided by the principles of common respect as well as independence, in contrast to confrontation and competition. Furthermore, when talking about the prophetic traditions of Islam, the reward for ending a dispute between conflicting individuals or groups is as important as that for a prayer.

Within the framework of Islamic mediation techniques, any differences or misunderstandings are to be eliminated at the early stages of a conflict. The ongoing continuation of the conflict, regardless of its nature (either a misunderstanding or a transgression), is always considered to be a contributor to the conflict, which then is exposed to the risk of perpetuating hatred or malice between parties. Thus, it is a social duty to make the best possible effort to resolve a dispute between groups or individuals. The Qur’an encourages the Muslim populations to resolve any conflicts that emerge inside or beyond their communities.37

In summary, culture plays a crucial role in developing useful methods for conflict resolution, and Islamic traditions and beliefs are significant in the control and reduction of disputes. The notion of Sulha, which means settlement, is a primary point to consider when evaluating the methods through which mediation can be developed in countries like Saudi Arabia and within the framework of the larger Arab world.38

Thus, it is necessary to consider the possible implications of Islamic culture in relation to law and to the various options for conflict resolution, including mediation. The incorporation of a Western approach into this non-Western cultural model is only possible to a certain extent since differences in values and beliefs are present; however, mediation is aimed at resolving conflicts that can arise at any level of human life, so it can be practiced widely in any culture, regardless of background, if specific modifications are carefully applied.

The Role of Government in Developing Mediation Practices

As mentioned, little has been done on the governmental level in Saudi Arabia to facilitate the development of appropriate methods of mediation. Since apart from small disputes and family quarrels there are no set standards for mediation, the government of Saudi Arabia should review the advantages of mediation in the context of court cases and then build up mediation strategies in accordance with Western standards.

Since conflict resolution is seen as a common duty in accordance with Islamic law, the role of mediators should be reconsidered and paid much more pointed attention. In the common Western approach towards mediation, a mediator is a law-trained professional that has extensive knowledge about the case in question. In the majority of cases, quarrelling parties look for a current or retired attorney, who brings valuable experience in resolving various disputes that may be similar to their own case.

Professionally trained mediators are different from trial lawyers since they have the ability to calm parties of the conflict, while trial lawyers are often more aggressive. Thus, the first major improvement that should be accomplished by the Saudi Arabian government is a new focus on providing training for professional mediators, who can then acquire appropriate experience in terms of conflict mediation.

Resolving all misunderstandings with the use of the courts is, first of all, costly for the country. Because mediation provides a much more efficient and less expensive path to conflict resolution, it is wise to invest in educating professional mediators that will, in the long run, help reduce expenses that go toward funding the courts and court system. Training mediators as professionals also aligns with a primary principle of the Islamic faith, which implies a requirement to do good for the community. Through providing various educational programs for future mediators, the government will follow guidelines written in the Qur’an when it comes to the communal good while at the same time contributing to the community at large.

When incorporating mediation into the law system of the country, the government of Saudi Arabia should again follow Western practices, making adjustments so that the new principles comply with common Islamic provisions related to the communal good. While the majority of American and European laws on mediation are based on the idea that the good of an individual in a dispute should be achieved through mutual respect and understanding, the approach in Saudi Arabia will more likely focus on achieving a communal good through mutual efforts.

Thus, the government should play a defining role when it comes to establishing a new framework of laws related to mediation and then promote these new methods of conflict resolution to offer disputants an opportunity to explain themselves, search for common ground with the opponent, and then resolve the dispute in the most amicable way possible. It is also important to remember that mediation can sometimes work even when disputing parties have already hired lawyers and are planning to file a lawsuit.

Because some lawyers are often focused on winning the case and doing their job, they forget about what can result between disputants after the case is closed: tension, hatred, and loss of respect. Mediation is a method that should no doubt be incorporated into Saudi Arabia’s law system since it would profusely benefit the population due to the advantage of focusing on relationships between people rather than just on simply ending a dispute. In addition, mediation is useful for the government in avoiding the violation of a judge’s rulings. Therefore, a mutual agreement reached through mediation is much more likely to be sustained by both of the clashing sides.39

When developing ground for successful incorporation of mediation into the law system of Saudi Arabia, the government can look to the U.S. as a viable example and then structure its changes accordingly. The most significant and successful aspects of mediation in the U.S. are based on the availability of mediation schools and colleges that thoroughly prepare professionals to function as unbiased third parties when resolving a conflict. In the U.S., mediation schools offer students a variety of options that range from a master’s degree to more basic and limited mediation workshops.

When the U.S. government incorporated such programs into the educational system, it was clear that the main purpose was to secure a body of law-trained professionals that could mediate conflicts across the country and beyond. The government of Saudi Arabia can play a defining role in establishing mediation as an alternative method of dispute resolution by creating mediation programs both for trained law professionals as well as for law professionals still in training.

When discussing the role of the government in relation to mediation, it is necessary to mention the international conflicts in which some governments play the role of a mediator. The Unites States is often called “the world’s police” since its government often chooses to attempt resolution of conflicts that appear on an international scale. Many scholars and practitioners originating in the Middle East that received training in the United States then regularly return to their homeland with an urge to pass on what they have learned about the ways that Western societies resolve conflicts.

This is especially true in countries such as Lebanon, Jordan, and Saudi Arabia, among others, where conflict mediation is fresh as a concept and practice. Conflict mediation is seen as an alien measure that is pushed on the citizens artificially for the purpose of popularizing foreign needs.40

What is worth criticizing is the Middle Eastern way of establishing peace and of resolving conflicts. The peace agreements and treaties established in the East are often based on political or economic inveiglements, coercion, or even simple strategic moves that rarely last. The lack of success in terms of Middle Eastern conflict resolution techniques is connected with the insincere actions targeted at intimidation. Thus, in order to incorporate the Western approach toward international conflict resolution, it is vital to survey three basic assumptions:

  • Assumption 1: Any conflict can and should be resolved to the fullest degree of satisfaction possible. Despite the fact that the majority of conflicts lead to hostility or even to war, it is crucial to remember that conflicts can also facilitate dialogue between conflicting parties and lead to improvements on an overall scale, thus leading to the establishment of much stronger relationships between communities or even between governments.
  • Assumption 2: Many conflicts, especially international ones, occur due to the misinterpretation of various data or due to a different understanding of values or relationships. As stated by the anthropologist Laura Nader, “Conflict is occasioned by incompatible desires or aims and by its duration may be distinguished from strife or angry disputes arising from momentary aggravations.”41 Because conflict relates to different interpretations of similar values, the Western approach views conflict as a positive process that can facilitate dialogue and the sharing of different points of views, and thus it can facilitate a common solution.
  • Assumption 3: It is important to acknowledge the psychological concerns harbored by each conflicting party in order to eliminate any possible feelings of loss or victimization. When it comes to international conflicts and confrontations, victimization is a key issue that plays a significant role and needs to be taken into consideration by the mediators. By overcoming any sense of victimization, conflicting parties are able to take a first step toward peace. In the majority of cases, violent acts arise as results of victimization, never mind who is the victimizer and who is the victim.42

Given the above-mentioned assumptions, adequate communication skills are what make the Western approach toward conflict resolution effective. Communication is one of the most important aspects of mediation, a skill often used by Western governments to resolve conflicts. According to the U.S. framework of mediation, a mediator is responsible for encouraging conflicting parties to negotiate in such a manner that there is the actual possibility of a win–win outcome.

The negotiations based on common interests are proven to be much more successful since they predominantly include interests achieved for the long term instead of just in short-term perspectives. Because there is an interest in a lasting outcome that will be applicable on a long-term basis, there is no place for giving in to a compromise; on the contrary, such negotiations involve a thorough exchange of particular opinions and stated requirements so that every party is satisfied with the outcome.

Mediation Training and Certified Programs in Different Governmental and Private Mediation Departments and Companies

As already mentioned, promotion of mediation in Saudi Arabia requires professional training for potential mediators in any sphere of relationships, whether personal, communal, or even international. Certified mediation programs exist throughout the Western countries in order to provide comprehensive training for potential mediators. The goal of such programs is predominantly threefold:

  • Set specific and unique standards based on performance in order to better evaluate the effectiveness of mediation;
  • Learn specific new skills to then implement in assisting conflicting parties in reaching a desired common goal;
  • Acquire information about the ethics of mediation, identify new opportunities in terms of commercial mediation, and start a professional career in the mediation practice.

Because mediation programs prepare professionals to become certified mediators and take much less time than completing a comprehensive university degree program, these mediation program could become one of the most effective steps toward establishing mediation practices in Saudi Arabia. The U.S. experience of supporting certified programs for mediation could be adopted easily in the East. For example, the National Association of Certified Mediators (the largest certified association for professional mediators) organizes and dispatches various programs to assist mediators in their professional practice and to educate emerging professionals in this particular field.

Collaboration with the Association could mean installation of similar programs in Saudi Arabia, ensuring compliance in the country with international standards, promoting mediation as an alternative and effective method of conflict resolution, and subsequently establishing professional mediation practices across the country. Of course, mediation training must be adjusted to fit the modern requirements of Saudi Arabian society; however, the basis for the training will be rooted in commonly recognized international standards for mediation.

While it is important to establish mediation training on the governmental level, any commercial company also needs professionally trained mediators to assist in resolving disputes at the local or regional company level. Due to the fact that the process of mediation can significantly reduce costs compared to the company paying to resolve a dispute in court, hiring a professional mediator at the company level can be highly beneficial. Along with reducing costs for a company, mediation also offers a customized approach toward resolving a business dispute.

By providing training for mediators in a business field, companies are able to then use those specific skills and knowledge in terms of ending any other conflicts or misunderstandings that might arise between companies, especially in the sphere of trade. Due to the fact that Saudi Arabia ranks fifteenth in the world’s largest export economies, skilled professionals in the sphere of business mediation are in high demand.

Furthermore, since some businesses require confidentiality in terms of negotiations and in regards to conflict resolution, mediation is a most suitable method for achieving it. The expectations of privacy not only set mediation apart from other methods of conflict resolution but also provide a stable basis for building a much more trusting and candid relationship between disputing parties. As evidenced by the mentioned points, then, mediation training can be a vital practice in any company that values confidentiality and respects its relationships with business partners.

Private centers and organizations can certainly capture and build their own beneficial situations similar to how governmental mediation agencies are being established in the exterior Western countries. While governmental mediation organizations cater to resolving community disputes as well as solving international ones, private mediation organizations in Saudi Arabia can address the need to resolve a private dispute by still placing the focused emphasis on contributing to the good of the overall community. Due to the fact that any relationship can revolve around either the governmental or private sectors, mediation organizations should also be developed in accordance with such critical distinctions.

Conclusion

To conclude, the research on mediation in Saudi Arabia in relation to established practices in the Western world, especially the United States, makes it clear that mediation is a fairly new concept that has not yet received the attention it deserves in the Arab world. Mediation refers to the process of peacemaking and conflict resolution between conflicting parties with the help of an unbiased communication facilitator that bears no relation to the conflict and acts only upon his or her own professional obligations.

While the Western approach toward mediation calls for a professional mediator with experience in the field of conflict resolution, the Islamic approach implies participation of an authoritative figure familiar with the dispute and equally as interested in resolving the issue, all while preserving the relationships between quarrelling parties. In Islam, mediation is considered a moral and communal duty since all interactions are grounded in the superiority of the common good over the individual. This cultural aspect is what makes mediation in Saudi Arabia and other Eastern countries unique from the Western approach.

Due to the lack of information on mediation techniques in Saudi Arabia, it can be concluded that the practice is not yet well developed; however, the establishment of private and governmental mediation centers, the incorporation of mediation laws into the overall law system of the country, and investment into the educational sphere of the practice of mediation can yield a positive response from the community.

The main role of the government is to promote mediation as a less costly and a much more efficient method of conflict resolution on any level—from private to international. Thus, the creation of a sufficient climate for mediation strategies in Saudi Arabia should be based on already existing mediation techniques spread throughout the Western societies, especially the United States. The U.S. law system recognizes the critical importance of the role of a mediator and thus provides complete training for professionals that want to acquire knowledge in mediation ethics, techniques, and practices. A similar approach can be implemented in Saudi Arabia in order to give mediation a solid foundation on which to build.

Footnotes

  1. Jacob Bercovitch and Richard Jackson, Negotiation or Mediation? An Exploration of Factors Affecting the Choice of Conflict Management in International Conflict. 2016. Web.
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Jim Melamed, Frequently Asked Questions about Mediation and Negotiation. 2016. Web.
  6. Ibid.
  7. Ibid.
  8. Ibid.
  9. Jacob Bercovitch and Richard Jackson, Negotiation or Mediation? An Exploration of Factors Affecting the Choice of Conflict Management in International Conflict. 2016. Web.
  10. Judith Saul, The Legal and Cultural Roots of Mediation in the United States, 8 Op. J. 1, 2 (2012).
  11. Morton Deutsch, Peter Coleman, & Eric Marcus, The Handbook of Conflict Resolution: Theory and Practice. (2nd ed., Josey-Bass, 2006), 746.
  12. Ibid, 748.
  13. Ibid.
  14. Ibid.
  15. Jess Alberts, Brian Heisterkamp, and Robert McPhee. Disputant Perceptions of and Satisfaction With a Community Mediation Program, 16 Int. J. Conf. Manag., 3, 218.
  16. Nasser Ali Khasawneh, & Vicky Sfeir, Arbitration and Mediation in the Arab World: A Growing Phenomenon. 2016. Web.
  17. Ibid.
  18. Jean-Benoit Zegers, & Omar Elzorkany. Arbitration Guide: Kingdom of Saudi, (International Bae Association, 2014), 7.
  19. Ibid., 8.
  20. Doron Pely, Muslim/Arab Mediation, and Conflict Resolution: Understanding Sulha (Routledge. 2016), 25.
  21. Ibid., 27.
  22. Ibid.
  23. Ibid., 28.
  24. Doron Pely, Muslim/Arab Mediation and Conflict Resolution: Understanding Sulha (Routeledge, 2016), 28.
  25. Richard Clark, The Dispute Resolution Review, (4th ed., 2012, Law Business Research Ltd) 666.
  26. Abdul Sirajuddinn, Mediation in Islamic Jurisprudence. 2016. Web.
  27. Ibid.
  28. Ibid.
  29. Ibid.
  30. Bevan Jones, The People of the Mosques (Gyan Publishing House, 1932), 55.
  31. Ibid., 56.
  32. Ibid.
  33. Abdul Sirajuddinn, Mediation in Islamic Jurisprudence. 2016. Web.
  34. Bevan Jones, The People of the Mosques (Gyan Publishing House, 1932), 54.
  35. Abdul Sirajuddinn, Mediation in Islamic Jurisprudence. 2016. Web.
  36. Ibid.
  37. Ibid.
  38. Ibid.
  39. Peter Lovenheim & Lisa Guerin. Why Consider Mediation? 2016. Web.
  40. George Irani. Islamic Mediation Techniques for Middle East Conflicts. 2016. Web.
  41. Ibid.
  42. Ibid.
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