Wednesday,18 October, 2017
Current issue | Issue 1285, (3 - 9 March 2016)
Wednesday,18 October, 2017
Issue 1285, (3 - 9 March 2016)

Ahram Weekly

Negotiation is the solution

Mediation is an alternative to sometimes expensive and drawn-out legal procedures

Negotiation is the solution
Negotiation is the solution
Al-Ahram Weekly

Legal mediation is a voluntary or optional procedure, Mai Samih attends a seminar discussing the process. Legal mediation takes place when the two or more parties to a conflict resort to a third and neutral person to judge between them, according to a paper by Hani Al-Gebali, a lawyer at the Court of Cassation. After listening to the two points of view, this person comes up with a possible solution to the conflict that may or may not have been taken into consideration by the parties.

There are two types of mediation: involuntary and voluntary. But whatever the type, such legal mediation is still not given its due in many legal conflicts, especially in resolving family conflicts, according to Al-Gebali.

To make sure that this situation changes, the Centre for Egyptian Women’s Legal Assistance (CEWLA), an NGO, organised a seminar on the empowerment of women in the social and legal fields. It was held at the Swiss Club in Imbaba, Cairo and featured Al-Gebali and Hoda Zakariya, a professor of sociology, as the main speakers.

Attending the event were NGO members and lawyers. The seminar was aimed at reshaping the traditional form of legal mediation to help empower women and to try to give those who mediate proper legal status. CEWLA has been working in this field since 2010.

According to Family Courts Law 10 of 2004, an office to resolve family conflicts already exists in each court called a “settlement office”. Family members with problems are obliged by law to resort to this office before going to court. The office serves citizens free of charge, and if the parties reach a settlement through it a written record is signed. However, the offices have not been as successful as mediation, Al-Gebali said.

Gawaher Al-Taher is the manager of CEWLA’s Egyptian Women Reaching Justice Programme. She said the NGO is an organisation “that works on empowering women, especially in the social, psychological and legal fields. Our main headquarters is in Boulaq Al-Daqrour in Cairo, something that is very useful to us as we are able to serve the people in this district who need our help the most.”

She said that the NGO was established in 1995 and has worked since in the aforementioned fields and in involving women more in politics.

The Egyptian Women Reaching Justice Programme started in 2010, when the NGO started to work on legal mediation,” Al-Taher says. “We were the first organisation to do so, and we established our first two offices in Al-Koum Al-Ahmar village in Giza and in Saouyta in Sohag in Upper Egypt. These were pilot projects, and we wanted to see if these offices would succeed or not. We got the idea of mediation from the wider work we do in the organisation.”

In its work, CEWLA does not simply act on behalf of a woman looking for legal mediation. Instead, it asks her to visit a psychological and sociological expert to try to solve her problems first in an amicable way. There have been many cases where problems have been solved outside court. Al-Taher adds that the NGO later started to work with other local NGOs to gather 20 experienced mediators from the villages where it had set up pilot projects.

The origins of the experiment came from the traditional mediation sessions that were already practiced in Upper Egypt and in Bedouin societies, these originally being run by village or tribal elders. But such mediators, when asked to work within a formal legal structure, needed proper training. “We learned that there were some mediators who had legal backgrounds and others who did not, so we decided to help them all by giving them legal and sociological classes,” Al-Taher explained.

 After working with such trained mediators for five years, more and more amicable solutions were being found, encouraging CEWLA to open further mediation offices in other governorates, including Fayoum, Beni Soueif, Qena, Kafr Al-Sheikh and Mansoura. The services are also not only for women.

“Seventy per cent of our work is aimed at assisting women, and the other 30 per cent is for men and marginalised members of society,” Al-Taher said, adding that in the future the NGO hopes to scale up its efforts to other Arab countries, including Sudan, Jordan and Yemen.

 

A

SSISTING WOMEN: Samaa Al-Turki, the co-ordinator of the project, shed light on the efforts that have been made to assist women through the project.

“The aim is to enable poor and marginalised women to claim their rights through our work on many levels. This includes raising the awareness of these women through sessions organised by CEWLA and offering them legal services. We have more than 75 awareness committees. In addition, there is our peer-support programme that is presently under construction,” she said.

Naturally, CEWLA would like to create a society that better understands the problems of women, as well as calling on the government to provide their rights. Assisting mediators in documenting the situations of women in the workplace will help CEWLA improve their lives.

“The project sees a mediator as a person who promotes the rights of women as he is a ‘son of society’ and helps to support it. He or she may also discover problems not tackled before, helping us to call for solutions through changing the laws, drafting new ones, or providing women with better services,” Al-Taher said.

According to Al-Turki, the more work that has been done through mediation, the fewer have been the formal court cases. For example, in 2012 the NGO filed 450 cases on behalf of women clients, while there were only 50 cases of mediation. However, in 2014 there were 400 cases of mediation and only 150 legal cases.

“We are tackling a subject that has not been looked at before by many NGOs, namely legal mediation. The Holy Qur’an states that mediation is important in solving social problems and that God will facilitate the solving of problems if those concerned intend to resolve them peacefully. The same goes for churches where clergymen work as mediators in various cases,” Al-Gebali said, adding that the experience of other countries could also be illuminating.

In France, for example, a decision had been made to make mediation obligatory in family cases, but it had been found that it was better to make it optional, he said. In the US, it has been found that mediation can be more effective, and certainly cheaper, than divorce cases in the courts. Morocco and Algeria in the Arab world have also pioneered legal mediation.

Today, CEWLA trains young lawyers, in some cases undergraduates, to organise legal sessions. “We would like the written agreements that mediators reach to have legal recognition, as they work hard to get these results and they solve many problems,” Al-Taher said.

 “Over the past five years we have been working on doing this, but the ministers of justice keep changing, making things more difficult than they need be.” She added that in Upper Egypt, cases of revenge killings had even been resolved through mediation, as well as less serious cases of arguments over inheritance. CEWLA now has six mediation offices in Upper Egypt, three in Sohag and three in Assuit.

Al-Gebali describes the process of mediation as consisting of three phases. The first phase is the “welcoming phase,” during which the two parties are welcomed and information is gathered about them. Then comes the consulting phase, during which the mediator explores possible resolutions to the conflict that do not involve going to court.

The rights of the weakest parties in the conflict, such as children, are scrupulously borne in mind. The third and last phase is when the parties reach an agreement. This is written down as a legal document and all the parties sign it. It is called a settlement contract.

“If 95 per cent of the courts are presented with a settlement contract or a report from a mediator, they will abide by it as it is more credible than other psychological or sociological reports,” Al-Gebali said.

She added that some cases need mediation in order to be resolved quickly, which can scarcely happen in the courts, or are sensitive and need to be resolved in private. There are also cases that require mediation because financial improprieties may otherwise be involved, especially in Upper Egypt.

 

Q

UALITIES OF A MEDIATOR: According to Al-Gebali, a mediator has to have certain qualities to be successful in his job, including the ability to be flexible and the ability to manage the anger of the parties.

A mediator has to be well read in law, so a retired judge or lawyer may be preferable. He has to be able to control the mediation process and give each party an equal period of time in which to tell his side of the story. He must be quick and be able to resolve a conflict without making one party feel they have been overlooked. He also has to push the parties to sacrifice part of their rights for the welfare of both.

“A good mediator must convince the two parties of the importance of mediation, and he must understand the nature of the conflict to be able to present it correctly, which is half the battle of mediation. He should also give good advice,” said Zakariya. In order for a mediation process to be successful, the two parties must have good intentions and really aim at resolving the conflict, said Al-Gebali.

“One of the most interesting subjects to teach is legal sociology as law is a social phenomenon based in society. In the same way that the society forms and changes the law, the law changes society. For example, the law that made education free in the Nasser period also gave rise to the middle class,” Zakariya said, adding that mediation also existed in traditional and tribal societies.

“In the wider world, if mediation is not successful, disasters can start, including wars and other catastrophes. Even climate change requires a form of mediation if it is to be dealt with successfully. What all these things have in common is the need to avoid conflict, such as that which took place between Cain and Abel,” Zakariya said.

“It is time for mediation to take on its proper role in society, as even in a conflict a person who thinks himself a winner has in fact lost. Mediation has carried a burden that the judiciary system has been carrying for years, especially after the emergence of social divisions. During the Nasser period, many people spoke the same language and had the same values, but all this changed and this was when family and other social problems really started. With the revolutions, the middle-class role in raising children properly with proper values began to disappear,” said Zakariya.

Social problems have given rise to political unrest and, in Upper Egypt, legal problems, especially regarding the resort to extralegal methods such as revenge.

Al-Gebali said that cultural productions including films could have a positive effect on social practices. For example, the film Awreed Halan (I Want a Solution) had led to a change in the law, he said. “We want to see laws that include mediation as a way of giving complete citizenship rights to all Egyptian citizens,” he added.

“Even in the field of education there is no homogeneity, so there are few points of agreement between graduates. This should be changed by creating programmes that spread legal awareness by changing school syllabuses through the work of NGOs like CEWLA,” Zakariya said. 

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