Document Type : Original Article
Author
PhD in Private Law, Researcher in the Women and Family Research Institute
Abstract
As the most fundamental social institution, the family serves as the primary vehicle for the transmission of moral, cultural, and religious values and as the initial locus of emotional and identity support for individuals. Consequently, any disruption in the mechanisms of family dispute resolution threatens not only internal familial stability but also broader social cohesion. Historically, a significant portion of family disputes was resolved through the mediation of relatives, elders, and trusted community members. This traditional approach—relying on lived experience, expediency (maslahat), the preservation of reputation, and a preference for peace over confrontation—often facilitated the restoration of relationships and prevented familial dissolution. However, with the expansion of modern judicial systems and the broadening jurisdiction of family courts, these indigenous and adaptive patterns have gradually eroded, shifting family litigation into a formal, ritualistic, and authority-driven framework. The result of this transformation has been an increased dependence of families on judicial intervention and a diminished capacity for the independent management of intra-familial conflicts.
Employing a descriptive-analytical method, this article seeks to elucidate how the establishment of arbitration organizations can contribute to the enhancement of family resilience. In the context of this research, family resilience is defined as the family’s ability to actively resolve disputes, maintain cohesion against cultural and social pressures, and reconstruct itself as a dynamic, self-reliant, and value-oriented institution. The central hypothesis posits that the institutionalization of arbitration—particularly through Islamic arbitration organizations—can bolster family resilience by de-judicializing family disputes, reviving indigenous capacities, and strengthening religious and cultural identities.
The findings of this article indicate that, while the judicial system performs a necessary function in ensuring legal order, it often lacks optimal efficacy in many family disputes. The adversarial nature of litigation, the requirement to disclose private family matters, the focus on evidentiary proof and the determination of rights and duties, and the predominance of mandatory formalities often place spouses in a state of confrontation. Such an environment restricts the possibilities for dialogue, forgiveness, and relationship reconstruction. In this setting, rather than being active problem-solvers, families become subject to decisions imposed by formal authorities. In contrast, owing to its consensual, flexible, and specialized nature, arbitration possesses a high capacity to restore agency to the family. By grounding itself in the consent of the parties, arbitration provides the necessary psychological and legal groundwork for cooperation from the outset. Furthermore, by offering relative freedom from rigid procedural formalities, it allows for the design of processes tailored to the emotional and cultural contexts of the family. Drawing on specialists such as family counselors, psychologists, and legal experts, arbitration provides more realistic and contextually appropriate solutions to family conflicts.
Nevertheless, the article emphasizes that the effective utilization of these capacities is impossible without institutional organization. While individual and fragmented arbitration may be beneficial, it lacks the capacity to compete with the cohesive and extensive structure of the judicial system. The establishment of arbitration organizations is therefore imperative—organizations capable of providing the institutional infrastructure necessary for fostering family resilience through the formulation of clear yet flexible regulations, the professional training of arbitrators and mediators, the creation of specialized networks in the family domain, the promotion of a culture of peace and compromise, and the provision of indigenous dispute resolution models. Within this framework, the institution of familial hakam (arbitration), grounded in Verse 35 of Surah An-Nisa, holds significant potential. The article demonstrates that if this institution is redesigned to move beyond its formalistic and mandatory role within the divorce process and is instead implemented in a voluntary, professional, and organized manner, it can serve as an indigenous, efficient, and culturally compatible model for resolving spousal disputes within the Islamic-Iranian context.
From a comparative and transnational perspective, the article asserts that the issue of family arbitration is not merely an internal matter. In many countries, including various Western legal systems, family arbitration and mediation institutions have become highly developed, with specialized organizations operating in this field. Conversely, the experiences of Muslim communities in non-Muslim countries—such as the disputes concerning religious arbitration in Ontario, Canada—demonstrate that the need for cohesive Islamic arbitration institutions is not merely a theoretical demand but is directly linked to the preservation of religious identity, the right to cultural choice, and the stability of Muslim families. Furthermore, at the international level, the dominance of arbitration models derived from Western priorities and values may lead to the marginalization of the cultural and religious considerations of Muslim families in the absence of Islamic arbitration institutions. Thus, the establishment of Islamic arbitration organizations carries strategic significance in the transnational arena as well as in the domestic sphere.
In conclusion, the article posits that the establishment of arbitration organizations is not merely a procedural reform in dispute resolution but a legal, social, and cultural strategy aimed at bolstering family resilience. By reducing excessive dependence on the courts, reviving indigenous and religious capacities, strengthening skills in dialogue and compromise, and defending the cultural identity of the family at both domestic and international levels, these organizations can play a fundamental role in maintaining familial cohesion and social stability. Accordingly, legislative support and purposeful policymaking to create and develop family arbitration organizations with an Islamic-Iranian approach constitute an undeniable necessity for contemporary society.
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