Reconciliation, Negotiation and Mediation (as-Sulh)
Reconciliation or mediation is formally known in Shari’ah as sulh. It originates from the word salaha, which means ‘to do good deeds’.[905] The process of sulh itself can be defined as a process of restoring something, be it a relationship or a loss suffered.[906] Nonetheless, the parties must be agreeable to this mediation, due to the amicable nature of the process that is required.
According to Article 1531 of the Mejelle, ‘Sulh is a contract of removing a dispute by mutual consent.’[907] In criminal cases, sulh is an agreement between two disputants to reach a settlement, or an agreement to compromise between two disputing parties.[908]Unlike litigation, where one party wins and the other loses, reconciliation or mediation is a platform where it is possible for both parties to win, be it monetarily or emotionally. In Islamic criminal law, reconciliation or mediation is viewed as a mechanism that enables parties to achieve positive outcomes, by compromising, reconciling and forgiving each other.[909] The positive outcomes can include easing of the animosity between parties where victims would be able to forgive, and promoting a better rehabilitative process of the criminals. Islam encourages mediation (sulh) in almost all types of disputes except for disputes that relate to permitting the prohibited matters or prohibiting the permitted matters in Islam. For example, Allah says in the Quran:
If two parties among the believers fall into a quarrel make you peace between them: but if one of them transgresses beyond the bounds against the other then fight ye all against the one that transgresses until it complies with the command of Allah; but if it complies then make peace between them with justice and be fair, for Allah loves those who are fair (and just). The believers are but a single Brotherhood: so make peace and reconciliation between your two (contending) brothers: and fear Allah that you may receive Mercy.[910]
The Prophet (pbuh) in one of the Hadith encouraged Muslims to practise sulh:
Kathir bin Abdullah bin ‘Amr bin ‘Auf narrated from his father that his grandfather said: I heard the Messenger of Allah (pbuh) said: ‘Reconciling between is permissible, except reconciliation that forbids something that is allowed, or allows something that is forbidden.’[911]
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