Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration

cases.

INTRODUCTION

Women, Mediation, and Religious Arbitration

THINKING THROUGH GENDER AND JUSTICE IN FAMILY LAW DISPUTES

Samia Bano

THIS BOOK DRAWS UPON empirical research and a theoretically informed critical analysis to investigate the diverse, complex, and contested experiences of women using mediation and religious arbitration to resolve family and matrimonial disputes in minority, ethnic, and religious communities. At the heart of the debates addressed in this book lie questions of justice, tolerance, equality, rights, and harm. Feminists and postcolonial scholars in particular have shown that the dominant features of alternative dispute resolution (ADR) are often characterized by male-dominated and patriarchal modes of governance and control. This represents a significant challenge to the family law field and one that has failed to critically engage the related questions of mediating across cultural and religious differences. Instead ADR in the family law context is often understood as the conflictual relationship between the informal and formal spheres and the clash of non-Western versus Western approaches. Very little, however, is understood about the interaction between the formal and informal spheres and, significantly, the mutually constitutive relationship between informal and formal spheres and the accompanying politico-cultural relations of conflict resolution (Brigg 2008, 52). Reflection on the question of how power and governance operate reveals that the traditional assumptions of ADR as consent versus freedom are unsettled, challenged, and in need of further scrutiny and critique. Furthermore, an emphasis on the elements of consent coercion, harm, and ADR as an empowering tool for women not only demonstrates the problematic aspects of such ADR but produces a more nuanced critical analysis in relation to the ways in which mediation and religious arbitration are infused with power relations acting as important mechanisms of liberal governance. Again, as Brigg points out, The operation of informal governance facilitates the workings of sovereign power and vice versa (2008, 55). This valuable critique raises urgent questions about whether the emergence of new and localized privatized forms of mediation and religious arbitration produce harms to and discrimination against women based on illiberal and unequal practices and informal decision-making processes. What, for example, are the boundaries of consent and coercion within community and family dispute resolution mechanisms? Do such bodies discriminate against women? Is justice being administered in the shadow of the law? What is the response of the state in different national jurisdictions? What are the lived experiences of women using mediation and religious arbitration to resolve family and matrimonial disputes? Is there a need for a reconceptualization of the law-religion-women nexus (Ashe and Helie 2014, 140)?

In the post-9/11 era in Europe as well as North America and Australia, new methods of family law dispute resolution have generated heated debate and controversy. Islamophobia, xenophobia, and anti-immigrant rhetoric have all played central roles in vilifying Islamic practices as pre-modern, backward, and patriarchal (Razack 2008; Sayyid and Vakil 2010). Muslim migrations to the West, in particular, have engendered a large body of scholarship exploring, analyzing, and critiquing the argument that Muslim communities are in essence unable to integrate into Western political, social, economic, legal, and intellectual practices, leading to the construction of popular narratives of Muslims as representing a form of non-European otherness (Hesse and Sayyid 2006, 18). Indeed, the migration, settlement, and integration of all minority ethnic communities into Western state democracies have led to fierce debates over the emergence of social and public policies that aim to accommodate and recognize different forms of minority ethnic pluralism(s). One feature of this process is what Estin (2008, x) refers to as the advent of the multicultural family, one that is shaped by multiple cultural and legal frameworks, overlapping with the complexities of hybrid and contested identities based on cultural, religious, and ethnic affiliations. Liberal political philosophers in particular have produced a large body of scholarship theorizing the relationship between identity, norms and normativity, rights, justice, and state recognition and the relationship to human rights legal instruments and mechanisms (Kymlicka 1995; Parekh 2000; Taylor 2007). More recently the focus has been on the detrimental effects of multiculturalism on majority and minority communities. The current popular discourse on the failure of multiculturalism that has led to segregated communities, communities living parallel lives, and a failure to forge a common national identity, one that is based on shared norms and values. But to what extent do multicultural policies and discourses shape ADR practices in minority community contexts? This volume addresses this question, with a core interest in the issues of gender, justice, and equality, drawing on important insights from the United Kingdom, India, the United States, Australia, and Europe. It is the first collection of essays to bring together a group of feminist legal scholars and family law practitioners to explore in depth the experiences of women using mediation and religious arbitration to resolve family and matrimonial disputes.

Over the years legal scholars and practitioners have recognized the role played by culture and, more recently, religion in the resolution of matrimonial and family law disputes. What we see emerging now are not only new forms of legal cultures, but also new forms of informal and formal adjudication developing within groups, communities, networks, and nation-states. Significantly, this increasing privatization of marital disputes takes shape both outside the traditional adversarial framework of family law and inside state law process and practice. For feminist scholars and legal practitioners, these new methods raise a number of fundamental questions relating to citizenship, personhood, and agency as well as the extent to which the privatization of ADR mechanisms may undermine traditional conceptions of justice, equality before the law, and common citizenship (see Yuval-Davis 2011). In addition, they raise questions about whether ADR mechanisms might increase citizen participation in civil society as well as their more general effect on changing patterns of state governance in resolving marital disputes. In Britain, for example, community and family mediation mechanisms that seek to resolve matrimonial disputes both outside the framework of state law and in conjunction with state law mechanisms have emerged. Research by feminist socio-legal scholars underscores the emergence of Sharia councils within diasporic Muslim communities that act as mechanisms to resolve matrimonial disputes within the family, home, and local communities (Shah-Kazemi 2001; Bano 2012). In Britain, this development has been followed by the establishment of the Muslim Arbitration Tribunal (MAT), which operates as a civil law mechanism under the auspices of the Arbitration Act 1996 to produce decisions that may be enforced and relied on in the civil courts. Within British Muslim communities, then, there is currently a three-tiered approach to resolving matrimonial disputes: (1) state law, (2) unofficial community mediation (e.g., Sharia councils), and (3) the Muslim Arbitration Tribunal.

In the United States, while most states allow religious arbitration as long as civil family law procedures are followed, more than a dozen have banned the use of Sharia courts. For example, in 2012 in Dearborn County, Michigan, opponents launched a vitriolic anti-Islamic campaign to abolish such practices. A Michigan Republican, Dave Agena, well known for his inflammatory anti-Islam remarks, introduced an anti-sharia bill (HB4769) to the state legislature that ultimately died in committee.¹ The introduction of religious arbitration services has provoked similar reactions in other Western nations. In 2003 in Canada, Syed Mumtaz Ali’s announcement that the Islamic Institute of Civil Justice planned to offer arbitration services to families in accordance with Islamic law in marital disputes under Canada’s 1991 Arbitration Act provoked a firestorm of protest. As the premier, Dalton McGinty, concluded, There will be no Sharia law in Ontario. There will be no religious law in Ontario. There will be one law for all Ontario.²

In many countries the state has renewed efforts to develop ADR mechanisms involving the use of arbitration, mediation, conciliation, and other collaborative legal initiatives across national boundaries. In Canada, for example, the 1991 Arbitration Act opened the door to religious and other forms of arbitration outside the courts, and in the United States there has been an even longer history of using arbitration and mediation in an effort to bypass crowded court calendars and save money (Sander 1985; Menkel-Meadow 2003, 2013, 2015). Moreover, in many nations, these initiatives have arisen specifically to meet the needs of varied religious communities, particularly those of observant Jews and Muslims. As a result, cross-cultural mediation mechanisms such as Islamic councils have come to the fore in determining the use and delivery of arbitration services. Unsurprisingly, these developments require that the challenges of gender inequality, discrimination, and harm be addressed.

For some, the emergence of new forms of family law dispute resolution mechanisms is understood as part of a wider liberal response to the challenges presented by immigration and the settlement of migrant communities of diverse religious and cultural backgrounds in Western liberal democracies. Questions of rights and demands for recognition of community rights are framed as multicultural challenges, which, in turn, give rise to important questions about power, authority, agency, choice, and capacity. For instance, should the state or a religious minority community have the ultimate authority in granting a divorce? Are women who work through religious tribunals to get a divorce acting autonomously? Or are they succumbing to the pressures of non-Western religious models of family life? There is now a rich body of scholarship that draws our attention to the social, political, and philosophical dimensions of minority rights and the ways in which the state accommodates cultural and religious differences while respecting group rights. For the legal scholar Ayelet Shachar, the right balance between the accommodation of minority group traditions, on the one hand, and the protection of individuals’ citizenship rights, on the other is what holds together liberal societies (2001, 1). This balance has been tested extensively in relation to the practice of cultural and religious beliefs of religious communities located in the West and their potential effects upon women as at-risk group members.

At the same time, feminist theorists have grappled with reconciling Western interpretations of sexual equality and autonomy and women’s agency, on the one hand, with cultural and religious differences, on the other (Mahmood 2004). Postcolonial feminists, for example, utilize the intersectionality framework to capture the differential experiences of women occupying multiple identity locations. Feminist analyses of the murky division between public and private life offer important insights into the feminist goals of autonomy, equality, and women’s capacity for decision making. For example, feminist interpretations of autonomy encourage women to make personal choices that include the autonomy of being and the right to go against what is considered the norm (Benhabib 1992; Fineman 2004; Mahmood 2004). In this collection of essays, our contributors draw upon feminist theory, intersectionality, Muslim feminist literature, empirical research, and legal practice to come to a better understanding of the ways in which women living in diverse cultural and religious communities access, utilize, and negotiate different mechanisms of ADR as forms of mediation and religious arbitration. We see how culture and religion can also be used as sites for locating the agency of women where cultural norms and cultural practices act as tools of representation and power, but in different contexts and locations identity can be expressed through cultural and religious practices. This volume also addresses the ways in which religiously observant women can be represented as devoid of agency and subjectivity in debates on universal liberal discourse on equality, justice, and freedom.

Family law is an important area for analyzing claims about the multicultural accommodation of cultural and religious norms and the potential effects on vulnerable group members. Some Western feminists have evinced skepticism about Muslim women’s use of religious tribunals, for instance, arguing that such behavior constitutes acquiescence to patriarchal structures rather than an autonomous choice (Abu-Lughod 2015). This volume provides important insights into the ways in which women’s agency, autonomy, and personal decision-making capabilities are expressed through formal and informal marital dispute resolution mechanisms and as part of women’s social and legal lived realities. Although the resolution of family disputes through mediation has a long history around the globe, scholars have paid little attention to its effects on users or its effectiveness. In addition, the emergence of religious arbitration in the United Kingdom, Europe, Asia, and the United States (among other contexts) in family law disputes has led to increasing concern about the fact that alternative dispute resolution mechanisms in general and mediation in particular are gaining momentum in legal practice and political theory without accompanying critique or scrutiny. By filling this empirical gap, the chapters in this volume provide an in-depth critique and analysis of the particular ways mediation and religious arbitration take shape across contemporary family law jurisdictions in Europe, the United States, India, and Australia. Furthermore, they analyze the dividing line between contemporary family mediation and more recent forms of religious arbitration in order to better understand the complexities and diversities embedded in these processes nationally and transnationally. At the same time, they do so with attention to both academic research and the reflections of legal practitioners and feminist activists who work in this area and engage with the cultural, social, political, and institutional contexts of ADR practices.

Mediation is traditionally understood as a process that assists parties in pre- and post-divorce settlements to produce the best possible outcomes for all parties involved. Moreover, it can take place both with and without state assistance and recognition. Alternative avenues for religious dispute resolution, on the other hand, such as the Jewish beth din and the Muslim Arbitration Tribunal, use existing civil law mechanisms to produce agreements by both parties subject to safeguards in the public interest. Yet the terms mediation and religious arbitration are often presented as interchangeable and overlapping privatized forms of dispute resolution. Further, they are often perceived by users to be situated outside the traditional framework of legal dispute resolution. Yet as we saw in the 2013 England and Wales Supreme Court decision in which the court ruled to uphold a rabbinical authority’s arbitration decision on child custody in a divorce proceeding (AI v. MT 2013), the state concurred with a religious authority in a marital dispute. Despite this recent decision, both mediation and religious arbitration continue to occupy a contested arena in law whereby competing legal and social discourses interact to produce a wide array of new disputing mechanisms and outcomes for its users. Yet scholars have paid little attention to the ways such agreements are forged and how issues of fairness, consent, justice, and protection of women as potentially vulnerable users take shape during the process.

On the other hand, legal practitioners now discuss extensively the increasing move toward implementing a nonadversarial approach to resolving matrimonial disputes in national and transnational family law contexts. For example, in England the Children and Families Act 2014 made it obligatory for all couples in England and Wales to attend a mediation meeting before submitting an application for divorce to the court. S10 (1) of this act states, Before making a relevant funding application, a person must attend a family mediation information and assessment meeting. The state therefore clearly expects family law disputes to be resolved outside the adversarial court process. But the extent to which newer forms of mediation and religious arbitration spaces are emerging to resolve matrimonial disputes, and the ways in which they are increasingly being occupied by a new kind of faith-based approach among minority religious communities, warrant further scrutiny. In contributing to this new area of research, this volume explores the relationship between women’s experiences using faith-based dispute resolution mechanisms and contemporary debates on religious identity, multiculturalism, citizenship, and equality before the law. Framed as sites where family law matters are resolved according to personal religious systems of law, these bodies have often emerged within the private sphere of local community and developed frameworks that are characterized by specific cultural and religious norms and values. Furthermore, self-governing religious bodies that act as councils and tribunals in matters of family law not only challenge the assumed centrality of state law mechanisms, but also open up the question of resolving matrimonial disputes in multicultural nation-states in cross-cultural settings.

Mediation has also been scrutinized by feminist theorists for many years. In the late twentieth century, for example, feminist scholarship from multiple theoretical traditions converged around skepticism regarding the use of mediation to resolve matrimonial disputes. For many, the theoretical promise of resolving disputes in a fair, open, and nonadversarial process failed to match up to the experience of mediation. Instead, the process ultimately reproduced unequal power relations and patriarchal social practices reflecting the subordinate position that women occupy in wider society. Mediation, such feminists argue, can increase rather than reduce the level of harm and violence directed toward vulnerable participants, particularly women (Booth 2008). Furthermore, the impact on women living in racialized minority communities can be particularly detrimental. As Patel points out: Ironically, the current promotion of faith based projects in all areas of civil society will compromise the gender equality agenda for black and minority women in particular. It will divert women away from the legal justice system into the hands of religious conservative and fundamentalist leaders. The cry of religious discrimination can and will be used to claim access to control over resources, whilst at the same time it will serve to perpetuate discrimination against women and other sub groups and to deter state intervention in family matters (2008, 15). So what insights can be drawn from national and international jurisdictions and the multiplicity of mediation and religious arbitration practices? Has the move from multiculturalism to multi-faithism (Patel 2008, 10), for example, led to an erosion of women’s rights?

Feminist criticisms of mediation therefore relate to broader issues of social, cultural, and historical relationships and unequal power relations that result in unfair bargaining practices and outcomes for vulnerable parties. Yet over the past forty years, the practice of resolving matrimonial disputes outside the sphere of formal legal adjudication and the emergence of new forms of mediation practices have gained renewed impetus among legal practitioners, policymakers, and feminist lawyers and activists.

The contributors to this volume seek to better understand the social and lived realities of mediation in family law disputes. At the same time, they investigate the rise of religious arbitration as a complex, contested process somewhere amid the constitutive relations of community, law, and state. In doing so they pose a series of questions: How do community processes and the state overlap and/or contest one another in family law dispute resolution? If mediation and religious arbitration manifest in different ways in law and community, what are their effects on women? What kinds of ADR practices are formed and what kinds of enforcement mechanisms, state legal processes, or community-based processes can protect women against coercive social and cultural pressures? What forms do mediation and religious arbitration take within nations and across national borders? How do personal laws, state laws, and community dispute resolution processes such as Sharia councils and the Muslim Arbitration Tribunal overlap and/or contest one another in Britain, Canada, and other nations? What kinds of enforcement mechanisms shape such family law dispute resolution processes internationally? And finally, to what extent do family law dispute resolution mechanisms protect all women in culturally and religiously diverse communities against coercive social and cultural pressures?

This volume considers whether feminist perspectives on mediation and religious arbitration are able to capture the complex ways in which mediation and ADR processes are conceived and understood by women who experience them in the broader context of social, cultural, and historical processes. In doing so, it builds upon existing scholarship on questions of religious integration into Western European societies that remain at the forefront of current social and political analyses. It also draws on recent feminist scholarship to explore how these processes are taking shape in the field of family law both nationally and internationally and raises important questions about women’s agency, autonomy, and personal decision-making capabilities.

At the same time, the volume locates debates on mediation and religious arbitration within the wider context of liberal rights discourse and community demands for formal recognition of religious arbitration tribunals as state-recognized bodies for resolving matrimonial disputes. At the same time, the important questions of sovereignty and judicial autonomy cannot be ignored, leading to new forms of legal state governance. As Ashe and Helie explain, The toleration of judicial autonomy in such bodies in itself manifests a striking sharing of sovereignty. And the ceding to religious bodies of a central feature of governmental sovereignty—the judicial power—becomes particularly problematic when that power is utilized in order to enforce religious law that conflicts with fundamental principles of the civil law (2014: 142).

In recent years, for example, the renewed visibility of religious communities in Europe, the United States, Canada, and Australia has led to increased discussions of identity and belonging. In England, this has been described as part of a crisis of multiculturalism in Western democratic societies, a crisis that has led to segregated communities rather than the successful integration of minority communities into mainstream societies (Bano 2012).

Drawing on original empirical data and critiquing existing research, this collection of essays analyzes the language of community rights and claims for legal autonomy in matters of family law. Drawing upon critiques of power, dialogue, and positionality to explore how multiple spaces in law and religious communities can potentially empower and restrict women at different times and in different contexts, it also opens up the conceptual space in which we can see in evidence the multiple legal and social realities in operation, within the larger context of state law, liberal multiculturalism, and human rights discourse. In this way, it also provides an important contribution to current debates on increasing the use of mediation and religious arbitration in family law and understanding the dynamics of relationality and cultural diversity in new forms of mediation and religious arbitration practices. In a wider context it explores the conceptual challenges that the rise of a faith-based dispute resolution process poses to secular/liberal notions of law, human rights, and gender equality. In addition, the collection considers the ways in which women with multiple social, legal, and political identities are able to utilize multiple systems of family law in their everyday lives.

Overview of This Volume

The chapters in Part One critically engage the concepts of mediation and religious arbitration, providing new insights into policy-oriented approaches. These chapters discuss empirical research and practitioner experience in the development of new mediation practices that raise important questions of power, capacity, and effectiveness. For example, Lisa Webley draws on her extensive empirical research on mediation and religious arbitration (for a number of public bodies and organizations) to question the ways in which the terms mediation and religious arbitration are often used interchangeably in practitioner settings and how religious norms and values are leading to new ways of resolving family law disputes. In particular she considers the controversial issue of whose norms should be applied in reaching a decision, taking into account mediator stance, issues of consensual decision making, what interest the state and society have more broadly in privately ordered disputes, and when (A)DR becomes dispute resolution performed by self-appointed judges using a parallel and sometimes covert and subconscious set of norms that are not easily susceptible to scrutiny, challenge, or appeal. We see here the multiple ways in which mediation and ADR have been shaped, challenged, and contested in the English legal context.

My chapter introduces critiquing notions of power, agency, and mediation within feminist legal theory. In particular it examines the contribution of feminist scholarship to our understanding of how women’s agency, autonomy, and capacity can be expressed in different ways and in multiple settings. Two key questions are posed. First, to what extent does a critique based on intersectional and feminist ethics of care contribute to a conceptual understanding of women’s religious subjectivity and agency and women’s use of mediation and religious arbitration? Second, does the increasing privatization of family law disputes provide evidence of the emergence of new cross-cultural mediation mechanisms encapsulating new forms of legal cultures in family law disputes within British Muslim communities that can be both supported and challenged by state law relations? The chapter makes it clear that while religious mediation and arbitration may emanate an emancipatory aura in resolving matrimonial disputes, the consequences for those who use them and for those who are asked to recognize them are often difficult and contradictory.

In her chapter, Pragna Patel, director of London’s Southall Black Sisters, challenges the rise of religious arbitration as a direct attack on access to justice for women living within minority communities and an eroding of citizenship rights. The key questions addressed in this chapter are: How can justice be protected by ever increasing religiously motivated claims-making in a neoliberal political context, and more important, what are the consequences of state legal aid being withdrawn from the most vulnerable in society, most often women and children? Drawing on an intersectional feminist critique of politics, Patel cautions against the resolution of family law disputes by ADR processes. The work of Southall Black Sisters demonstrates that the demand for the accommodation of non-state legal orders within the formal legal system is inextricably connected to the rise of religious fundamentalism and neoliberalism, both of which seek to privatize justice for their own ends.

Whether religious arbitration constrains or enables women’s autonomy and creates gender-equitable outcomes is a theme that comes up in many chapters in this volume. Sarah Beskine, an English solicitor, provides insights based on her experience as a family law lawyer into mediation and religious arbitration in the British legal context as well as the potential repercussions for women living in minority communities. At the forefront of new changes to family law provisions, she investigates how women from Muslim and Jewish communities navigate mediation, religious arbitration, and civil law to resolve matrimonial