Who Is Appropriate to Become a Hakam (Mediator) in the Case of Syiqaq and How is Its Role?

As we all know that marriage between two people is their sacred ties bond which is expected to create a sense of peace, mawaddah (love) and rahmah (love). To achieve this, be need for mutual understanding of the interests of both parties (husband and wife), especially those related to rights and obligations. After the marriage contract takes place, the husband and wife have rights and obligations.

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Not like what we imagined before we were married when we still was dating. In domestic life, we often encounter two people (husband and wife) complaining to others or to their families, because of the non-fulfillment of the rights that must be obtained or not carried out by one party, or because reasons and other factors, which can result in a dispute between the two (husband and wife). And it is not impossible that the dispute will lead to broken home and the breakup of marriage ties (end with divorce).

Basically, a marriage and household life that has been fostered, in this case no one wants a marriage bond and their household ends in divorce. But when disputes and disputes cannot be resolved, both in family, custom, tradition and applicable law, it must inevitably end with divorce (even though it is so bitter and painful).

If we glance into the life of the ladder, in general, it can be said that almost all household problems (disputes) between husband and wife begin with small and trivial problems, then becomes a big problem because it is not addressed by the right way or left unchecked which gradually arises hatred and resentment between the two (husband and wife).

In this case I hope you all have a good and happy family, and the beach in overcoming small problems so that it does not lead to hostility, disputes, and divorce.

Syiqaq (Disputes Between Husband and Wife) As The Reason For Divorce

Syiqaq is a term or word mentioned in the Holy Qur'an. The term syiqaq refers to persistent quarrels that leave prolonged hatred and resentment. Syiqaq is one of the potential causes of divorce. But long before in the Qur'an surah an-Nisaa verse 35, Allah Swt, had ordered that if there was a dispute between the two (husband and wife), then send a hakam (mediator) from the husband family and a hakam ( mediator) from a wife family.

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The Qur'an through the verse provides and explains ways and solutions to resolve disputes / disputes between husband and wife, namely by sending a hakam as a "mediator" from both parties to help resolve the dispute beetween the two.

Although in general, The syiqaq case of husband and wife ends in divorce because of the quarrel and the problems that occur between the two (husband and wife) cannot be reconciled.

Even so "marriage" is not a solution. As severe and as intense as any problems (disputes) between the two, ordered mediation efforts.

Mediation efforts are carried out so that the problems between the two can be resolved without anyone feeling defeated and winning. In terms of mediation there is no term the husband loses and the wife wins, and vice versa. Problems that are solved by taking the mediation path will both feel win and lose. In addition, the mediation also aims to make the two of them do not hold grudges and leave hatred.

So, based on the Qur'anic theory that Hakam (mediator) plays an important role in resolving disputes between the two (husband and wife). Initially, mediation is one way of resolving non-litigation disputes that resolves disputes conducted outside the court. But it is not always a process of dispute resolution in mediation, purely taken outside the court line.

For example: a case of divorce dispute on the grounds, or on the basis of syiqaq, where the method of mediation in this matter is no longer seen as a way of resolving disputes outside the court, but it is also part of the dispute resolution in the court.

How Important is the Hakam (Mediator) Role In Resolving Syiqaq Case?

1) Mediation

Mediation is the process by which the participants, together with the assistance of the neutral persons, systematically isolate dispute issues in other to develop options, consider alternatives, and reach a consensual settlement that accommodate their needs. [source]

So, the mediation I mean here is decision-making process in which the the disputing parties are assisted by a third party (mediator ), and then the mediator trying to help to improve the process of decision-making and to assist they (the disputing party) reach an outcome to which of them can assent.

Not all mediation processes succeed in reconciling the parties to the dispute, meaning that there are those who succeed and some who do not depend on their problems (husband and wife). And also very much depends on them if they both want to win by themselves, then the problem will be very difficult to solve with the help of a mediator.

In the laws of the Shariah Court (court), a dispute case was decided to have no legal force. This statement is like my interview with a media judge at the Pidie Jaya Islamic Court, Dr. M.Syauqi, S.H.I., S.H., M.H. He continued, even though we already knew from the beginning the cause and the root of the dispute that was disputed by the husband and wife, which in general if such problems could not be resolved (Not successfully reconciled). The Judge Mediator must carry out his duties and obligations to be able to make a final decision.

2) Marriage

Marriage according to Law No. 1 of 1974 is the bond of inner birth between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the One God Almighty. [source]

3) Syiqaq

Syiqaq according to article 76 (1) of Law No. 7/1989 was a sharp and continuous dispute between husband and wife. [source]

Thus, Syiqaq is not a mild dispute, but Syiqaq can be said to be a great, continuous dispute between a husband and wife who are difficult to reconcile.

4) Hakam (Mediator)
Regarding to the notion of mediation above, it can be interpreted that hakam (mediator) is someone or a neutral third party who is sent by the Judge of the Shari'a Court to help, seek and mediate the parties to the dispute so that they are not deadlocked and find solutions to problems what they are facing (husband and wife).

Based on the description and understanding above, it can be concluded that hakam (mediator) plays an important role in efforts to reconcile the parties to the dispute (husband and wife). Therefore, not all people (judges) can be appointed as mediators. At least those who become mediators are judges who already have a mediator certification issued and approved by the Supreme Court. Most mediations carried out by the judges of the Sharia Court (courts) in particular the case of syiqaq are not effective. Almost the average mediation process carried out in the effort to resolve the Shiqaq case between husband and wife is unsuccessful, in meaning that they (husband and wife) still make the final decision as before (stick to their respective principles).

Therefore, it is strongly recommended that those appointed as mediators are judges who have followed the mediator training and have a mediator certificate.