(ODR) in Malaysia - IEEE Xplore

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e-mail: [email protected], hannaambaraskhan@yahoo.com, {imadf, ahnora}@iium.edu.my. Abstract—Islam is a way of life that guides the Muslims from.
2013 5th International Conference on Information and Communication Technology for the Muslim World.

Setting-Up a Sulh-based, Community Mediation-type of Online Dispute Resolution (ODR) in Malaysia Raini Hassan*, Hanna Ambaras Khan**, Imad Fakhri Al Shaikhli*, Member, IEEE and Nora Abdul Hak** *Department of Computer Science, Kulliyyah of Information and Communication Technology (KICT), **Department of Legal Practice, Ahmad Ibrahim Kulliyyah of Laws (AIKOL), International Islamic University Malaysia (IIUM), Kuala Lumpur, Malaysia e-mail: [email protected], [email protected], {imadf, ahnora}@iium.edu.my Abstract—Islam is a way of life that guides the Muslims from all perspectives, and as portion of Islam, it also promotes peace and conciliation in resolving disputes. The Al-Quran provides guidelines in dispute resolution through a third party called Sulh. Sulh refers to the process of mediation, arbitration and reconciliation that takes place when the parties involved agree on a process of resolving a dispute with a third party mediator, who eventually will ensure that both disputed parties will be satisfied by the outcomes. This work is focused on community mediation, which involved with the disputes between the community members. In Malaysia, Sulh were actually practiced by the Malays prior to the time of the Portuguese, the Dutch and the British. The session will be conducted by a third party who normally a respected and elder person in the society, whom also held the position as the headman (Penghulu or Ketua Kampung) or Imam (a religious leader). Nowadays, given the plural society of Malaysia, and the era of Internet, it is crucial for Sulh to be available online. With the use of ICT tools, Sulh can be promoted to society, and if it is a part of e-government efforts, then it will encourage the society to be involved with the government’s mission. The online Sulh will not merely act as an interface for those parties involved. The challenges of making the online system secured, the correct ways of ensuring the data accuracy, understanding on methods that will be used for data propagation (among others), are existed in the domain of Computer Science (CS). There are many possible CS approaches, but the work will focus on Computational Intelligence (CI) techniques, with special interest in connectionist models. Keywords—dispute resolution; sulh; community mediation; alternative dispute resolution; online dispute resolution; egovernment; ICT; computer science; computational intelligence; artificial intelligence; connectionist models; legal expert systems;

I.

INTRODUCTION

Islam is a way of life that guides the Muslims from all perspectives. Dispute resolution is a portion of Islam which guideline is provided by the Al-Quran, which is through a third party or by Sulh. This includes how to solve dispute between husband and wife or between the community’s members. AlQuran provides that when there is a dispute between two people, a third party may assist to resolve a dispute between parties and if there is a dispute between husband and wife, let

each of them appoint their own representative to resolve the matter. This stated in the in the Al-Quran [1]: “And if two factions among the believers should fight, then make settlement between the two” (49:9); “And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]” (4:35); and “And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best” (4:128). Islam promotes peace and conciliation in resolving disputes. In one hadith [2] narrated by Abu Hurayrah, the Prophet (s.a.w) said conciliation between Muslims is permissible. The narrator Ahmad added in his version: "except the conciliation which makes lawful unlawful and unlawful lawful”. Sulayman ibn Dawud added, the Apostle of Allah (s.a.w) said: “Muslims are on (i.e. stick to) their conditions”. In another hadith [3], narrated by Sahl bin Sa’d that once the people of Quba fought with each other till they threw stones on each other. When Allah’s Apostle (s.a.w) was informed about it, he said “Let us go to bring about reconciliation between them”. In a hadith [4] narrated by Um Kulthum binti ‘Uqba that she heard Allah’s Apostle (s.a.w) saying: “he who makes peace between the people by inventing good information or saying good things, is not a liar”. These hadith showed that Sulh is an important part of Islam. Other than Sulh, the conventional method of mediation is called alternative dispute resolution (ADR). The online dispute resolution (ODR) is actually an advancement of ADR, where the processes of the latter have gone online. ODR is not only covers mediation, but a whole lot variety of arbitration, negotiation, etc. The contents of this work were indirectly arranged into two parts. Part 1 will covers the background of Sulh and Alternative Dispute Resolution (ADR), which consist of the following sections: II. An Introduction To Sulh and ADR, III. Sulh in

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Tanah Melayu, IV. The Chinese and Indian Immigration: An Introduction to Plural Society in Malaysia, V. Department of Unity and Integration (DNUI), VI. A Revert to Sulh and, VII. Islam’s Way: Sulh and the Need for Going Online. Part 2 will introduce the ODR concept from ICT point of view, brief reviews of 2 examples of ODR in Malaysia, as well as the reviews of the use of CI approaches and techniques in other advanced ODR from around the globe. The sections are: VIII. ODR in General, and in Malaysia, IX. ODR and Computer Science and X. CI-based ODR. Lastly, conclusion and future works will be provided. II.

AN INTRODUCTION TO SULH AND ADR

Qamar [5] states that the process of mediation, arbitration and reconciliation (sulh) take place when the parties agree on a process of resolving a dispute with a third-party mediator, who will ensure that all parties are satisfied by the outcomes. According to Abdul Rahman [6], the word sulh may be translated as conciliation and mediation since there in no semantic different between them in Arabic language. Muhammad [7] mentioned that this method of disputes resolution has been embraced by Muslim elders in many societies and involves a clear, step-by-step process of mediation (wasata), arbitration (tahkim) and reconciliation (sulh) derived from the episodes from the life of the Prophet himself. Said [8] states that, in Islam, wasata is the common term for mediation which means a benevolent and non-binding procedure to end a dispute. III.

SULH IN TANAH MELAYU

Sulh is a traditional method of dispute resolution practised by the Malays prior to the introduction of English laws. However, the paper will limits to the States of Malacca only. The history has tracked implementation of Islamic Law since the reign of Malacca Sultanate. Islam had been brought to Malacca in 14th Century. The arrival of Islam in Malaya began when Malacca became a Muslim Kingdom under Sultan Iskandar Shah as stated in Ahmad and Ahilemah [10]. In the Malacca Sultanate period of reign, there are two digest i.e., Undang-undang Melaka (The Laws of Malacca) and Undangundang Laut Melaka (Maritime Laws of Malacca). as stated in Mehrun [11]. Ahmad and Ahilemah [12] stated that, earlier, the laws set out the customary laws only, but in a later version Islamic laws were added. The subsequent version has added a part dealing with marriage and divorce as mentioned above. Liaw [13] explained that the Laws of Melaka provides that Sulh (amicable settlement) is lawful if the defendant acknowledges the claim and unlawful if the defendant denies the claim. The Laws provided that there are six cases where amicable settlement may be applicable. The amicable is only possible if both parties agree on the term of settlement. The laws showed that the application of alternative dispute resolution is used since the day of Malacca. The word Sulh is adopted from Arabic which is provided by the Al-Quran. The position of Islamic law as the law of the land before the coming of British is affirmed in the case of Shaik Abdul Latif and other v Shaik Elias Bux (1915) [14] where Edmonds J.C in his judgment said:

“Before the first treaties the population of these states consisted almost solely of Mohammedan.” Thus, Sulh or mediation or arbitration has been in practiced by the Malays prior to the time of the Portuguese, the Dutch and the British. Even though, it is not called as Sulh literally, the act of having a third party in assisting the disputant is Sulh. Thus, without realizing, the Malays are practicing Sulh as a method of dispute resolution in the society. The Sulh/mediation’s session will be conducted by a third party who normally a respected and elder person in the society, whom also can held the position as the headman (Penghulu or Ketua Kampung) or a religious leader (Imam). This practice is available in present day in the rural area in Malaysia as noted by Cecil Abraham [15]; “Mediation is also evidenced in the rural areas of Malaysia by the determination of dispute by the ‘penghulu’. The Penghulu, is the chief or head of the village who is asked to preside over a dispute, in the capacity of a middleman”. In Malacca time, the law was administered according to the adat and the Syariah as understood and interpreted by the chiefs and local chiefs (penghulus) under the traditional Malay system until the British interfered by installing a legal system based on their legal concepts and integrated religious courts into the general framework of court administration. It is very unfortunate for Malaysia because its Islamic law were altered by the British with the introduction of English Law and the spread of its influence. Subsequently, the method of resolving disputes was changed to litigation. As the consequence, the traditional method has been put aside and later on faded and ultimately forgotten. IV. THE CHINESE AND INDIAN IMMIGRATION: AN INTRODUCTION TO PLURAL SOCIETY IN MALAYSIA The British has changed the social structure of Malaya by encouraging the immigration of Chinese and Indian into Malaya for cheap labor. It happen when they found that there was a need of huge supply of labor to exploit the Malay States which were rich in natural resources, especially its vast areas of fertile land and the mineral; particularly tin. Sharifah explains that the British adopted the scheme of welcoming immigrant but refused to let integration between the races [16]. Mohamad [17] further explained that the British prevented integration between the races by segregated each races according to their divide and rule policy. G. Raman [18] mentioned that the Indian and Chinese who were considered as the immigrant practice their personal law and custom whereby they resolve their disputes through mediation by elders of the community, clans or guild. When the colonial period ended, the Malaysian has accepted litigation as the method of dispute resolution and this practice has been in continuous for a long time. V.

DEPARTMENT OF UNITY AND INTEGRATION (DNUI)

The British had left Malaysian Government with a huge responsibility to promote integration between the ethnics and races. The Government of Malaysia has played a vital role in promoting and maintaining the unity and harmony in Malaysia. The most important step taken was the establishment of the Department of Unity and Integration (“DNUI”) in 1969. The department focuses on national and societal integration. Their mission is to promote unity and integration by increasing the opportunities for interaction between ethnic groups. One of the

efforts by the Government of Malaysia is the establishment of Rukun Tetangga in 1975 to initially ensure the safety of the local residents. In 1984, the focus of this organization changed to strengthen the relations between the various races in Malaysia as explained in Jabatan Perpaduan Negara dan Integrasi Nasional [19]. In promoting integration and harmony, DNUI have developed the Rukun Tetangga programme in certain residential area, and introduced them to a pilot project called “Community Mediation” programme. The main purpose is to train the Rukun Tetangga Area Committee to be Community Mediators in their residential who plays the roles as third party in helping the disputants/residents to resolve their dispute. Ho [20] explained that the idea of having this pilot project emerged from the finding of DNUI that the social tensions at the community level arises from the inter-ethnics and intra-ethnics fights. The project was developed in 2007 and implemented in 2008. The implementation of mediation in daily problems between families or in resolving dispute within neighborhood is a great effort. We are reverting to the Islamic way of dispute resolution. Sulh is mentioned in the Al-Quran since 1400 years ago. In additional, the Malays, Indians and Chinese were practicing this method prior to the introduction of English laws. However, the Western has differentiated these two methods by using the terms traditional mediation and institutionalized mediation or modern mediation. Thus, it is important for all Malaysian to revert to our traditional method of dispute resolution, and as for Muslim to go back to the method promoted by Islam and institutionalized it. VI.

A REVERT TO SULH

Hence, DNUI is not promoting a new method of neighborhood dispute resolution, but reverting to the method practiced in Malacca period of time i.e. Sulh. The Malaysian was practicing Sulh without realizing it. Therefore, it is believed that the implementation of community mediation with a proper system and promotion will again gain the trust of the Malaysian citizens. VII. ISLAM’S WAY: SULH AND THE NEED FOR GOING ONLINE Islam has taught Muslims to do goods toward their neighbors. In one hadith [21], 'A'isha reported that the Prophet, may Allah bless him and grant him peace, said, “Jibril, may Allah bless him and grant him peace, kept on recommending that I treat neighbors well until I thought that he would order me to treat them as my heirs”. This hadith was used in the case of hadith [22], where Mujahid reported that a sheep was slaughtered for 'Abdullah ibn 'Amr. He asked his slave, “Have you given any to our Jewish neighbor? I heard the Messenger of Allah, may Allah bless him and grant him peace, say, “Jibril kept on recommending that I treat my neighbors well until I thought that he would order me to treat them as my heirs”. Therefore, any problem arises should be settled amicable as provided by Islam. The Community Mediation Centre would be the best resort for neighbors to resolve their dispute without being known by others in the neighborhood. The online system will help the parties to settle their problem in silence since nobody will see them going to the center and their matter will fall under the private and confidential law that should not be

shared by the mediators with others. Further, the online system will prevent any of the parties from disclosing their dispute to others, or humiliating another party. Hence, sulh-based Community Mediation is suggested to be set-up to create an online system of dispute resolution in the community in Malaysia initiated by DNUI but based on Islamic way. Basically, sulh and community mediation are referring to the same approach and method. This Sulh-based community mediation is to revive sulh at community level in Malaysia with Information Technology assistance. VIII. ODR IN GENERAL, AND IN MALAYSIA Kaufmann-Kohler and Schultz [23] define ODR as a broad term that encompasses many forms of ADR and court proceedings that incorporate the use of the Internet, websites, email communications, streaming media and other information technology as part of the dispute resolution process. Setting-up a technology-assisted dispute resolution or specific in this work; sulh-based community mediation ODR is vital in this age, as this effort can also be considered as part of egovernment service to the society, which in turn is parallel with the government efforts in making processes to go online. The twofold advantages are, first it brings citizens into contact with the government, and secondly the ODR itself can add new element to the government-citizen relationship [24]. ODR can also be used for the parties involved that could not meet face to face, or for those who can, it will be inconvenient or costly to do so [24]. The online interaction will not replace all face to face meetings, but to reduce as many as necessary [24]. Historically, the first applications of ODR were detected in the late 1990s [24]. The applications were in the private sector, and in resolving disputes arising out of e-commerce related field [24]. Mainly, the ODR were using automated tools, such as eBay [24], that has handled over forty million disputes between buyers and sellers in 2008 [25]. Similarly, since 2000, the Internet Corporation for Assigned Names and Numbers (ICANN) has managed resolutions of over 25,000 domain name disputes [25]. With regards to online mediation, Kaufmann-Kohler and Schultz [23] stated that it is a ‘human-assisted’ negotiation due to the absence of authoritative (or limited) in its decisionmaking by the accepted third party. According to KaufmannKohler and Schultz [23] too, where necessary, a distinction can be made between ODR service providers and ODR application service providers. The former refers to those who provide actual dispute resolution services, and the latter is referring to those who only provide the technical architecture for ODR. Specifically in Malaysia, to the best of our knowledge, there are two online, paid services of dispute resolution in Malaysia. The first one is called ODR Malaysia [26], where it is also self-claimed as the first ODR site in Malaysia. It highlighted that it does not guarantee a settlement. The services offered are assisted negotiation, automated negotiation, mediation and conflict resolution. It can be assumed that it is a one type ODR service provider. The second online, paid ODR service is called Kuala Lumpur Regional Center for Arbitration (KLRCA) [27]. The services offered are adjudication, fast track arbitration, conciliation/mediation, Islamic banking and financial services arbitration, domain name dispute resolution, and sensitive names disputes resolution. Basically, this online site is only for

displaying information, rules, guidelines and fees. The services offered are being carried out manually. Thus it can be assumed that it is a one type of ODR application service providers. Both ODR are focusing on the large scale of dispute resolution, with the mediation services are part of their whole services. IX.

ODR AND COMPUTER SCIENCE

ODR specialized in networked health Information Technology [25] showed that there are needs to use CS aspects in designing an efficient and accurate ODR. This work concluded that the challenges seem to be inevitably involved with the CS research community. The computer scientists’ skills are needed to [25]: 1.

assure improved security and privacy.

2.

create methods that can mitigate the impact of a security breach.

3.

understand on how to improve data accuracy.

4.

create methods for propagating corrections throughout large and diverse distributed data repositories.

5.

create appropriate human-computer interfaces.

6.

develop tools for exploring and understanding complex data.

7.

create models of dispute resolution.

8.

develop methods for supporting the identification of acceptable solutions.

9.

create methods for identifying potential points of dispute.

10. develop methods for supporting the expedited creation. 11. deploy of more effective dispute resolution systems. With respect to the community mediation, a number of attributes need to be carefully approached and implemented on, such as: 1.

The flow of the mediation processes based on existing protocols.

2.

The privacy of information being stored, disseminated and used, the storage of the confidential information, and the documentation processes.

3.

The identification of people in-charge and users of the system, and people with level of trust/privileged access, i.e. the administrators of the system, the management people, mediators, Rukun Tetangga officers, and parties that are involved in the dispute.

4.

The identification of potential dispute solutions for the disputes that will be handled in no face to face meetings manner, opted by both parties.

5.

The identification of emergency ranking for the emergency dispute cases.

6.

The attributes that contribute to the dispute solutions, which can assist the mediator in deciding the best solution for both parties involved.

7.

The follow-up process after the dispute has been settled.

Overall, sulh-based community mediation ODR can take the basis of any existing ODRs available, as long as its own dispute resolutions processes and procedures that need to go online is clear, and that the whole process is transparent, and efficient. X.

CI-BASED ODR

Here, a few selected works on CI-based ODR will be discussed. The works are ranging from the integration of Artificial Intelligence (AI), argumentation, and game theory, reflective visualization, multi-agents, Bayesian Belief Network (BNN) and persuasion dialogue. Bellucci, Lodder and Zeleznikow [28] integrated AI, argumentation and game theory, and then used it to determine if a dispute is better to be solved in court or by means of mediation. DiaLaw [29] (as cited in [28]), is a legal expert system that were used in the authors’ model to represent the communication aspect of a system. Basically, DiaLaw is a twoplayer dialogue game. A dialogue starts if a player introduces a statement he/she wants to justify, and will ends if the opponent accepts the statement (means it has been justified) or, if the statement is withdrawn (failed to be justified) [28]. The second aspect of the system represented the intelligent system support, where here, the authors used Family-Winner algorithm. This algorithm uses Principled Negotiation as the underlying negotiation strategy, in which decision-making is supported by trade-off and compensation strategies [28]. The first step of their integrated system is to calculate the BATNA values (BATNA refers to Best Alternative To a Negotiated Agreement). BATNA can be used to determine whether it is best to go to court or to mediate [28]. The second step is attempting to resolve the dispute through a dialogue. As for the last step, negotiation support through the use of compensation strategies and trade-offs will be executed. This step can be used if the above dialogue is not successful. Maeno, Nitta and Ohsawa [30] are concerned with the mediator’s skills; whether the ones that they have now can help to improve the mediator’s role. As education and training for mediators has become complex issues, the questions are now on whether the mediators’ skills can be trained when the much needed skills are ill-defined [30]. Thus, the authors explored text processing method for reflective visualization of the utterances from a mediator and disputants in a dialogue in mediation. This method is applied to a mediation case that involves a dispute between a seller and a buyer at a completed, online auction transaction. The methods used by the authors are dialogue, graphical diagram, temporal topic cluster and intertopic association. The inter-topic association foreshadows the intentional or unintentional subsequent development of topics indicated by temporal topics clusters far apart in time [30]. The method visualizes the way how mediation trainees resolved a dispute between a seller and a buyer, on cancelling a purchase transaction at an online auction site [30]. Results found that that the diagrams are useful for mediation trainees to reflect on their dialogue to move from the impasse point to an agreement [30].

Zeleznikow and Abrahams [31] are concerned on the issues of fairness in the negotiation process. Especially in family law, differences in power between men and women may lead to negotiated results that favor men [31]. Bargaining imbalances can thus produce unfair results unless mediators or negotiation support systems overcome them [31]. The authors explored the use of multi-agent in the negotiation support system to assist the disputants to achieve legally fairer negotiated outcomes. Among the traits of intelligent agents that the authors believe will support the negotiation support systems are reasoning, knowledge, planning, learning, communication, perception and the ability to move and manipulate objects [31]. The multi-agent platform allows part of the negotiation process to be automated [31]. Muecke and Stranieri [32] integrated dispute resolution process with prediction of judicial outcomes, which can be achieved by using a series of Bayesian Belief Networks (BBNs). In specific, they integrated an argumentation based model of reasoning Generic Actual Argument with a BBN to implement inferences with uncertainty. This integrated system is used to solve specific family disputes of concerning custody and property issues following a divorce. This work is said to be able to produce judicial outcomes that are consistent with the decisions that a judge would make if the matter was heard in Court. BBN is a directed graph where nodes represent factors of a domain problem [32]. This work found that though the approach cannot guarantee 100% fairness, it showed that it placed a greater emphasis on fairness, which has been lacking in other ODR approach. Walton and Godden [33] showed how dialogue-based theories of argumentation can contribute to the construction of effective dispute resolution systems, in specific, the negotiation process. The authors specifically considered the role of persuasion in ODR by showing how persuasion dialogues can be functionally embedded in negotiation dialogues, and how negotiation dialogues can shift to persuasion dialogues. The work showed that there are needs for ODR systems to incorporate persuasion in their dialogue models by demonstrated the effects of persuasion in negotiation processes. To conclude, there are many techniques to incorporate CI elements in ODR. Based on the ODR requirements and environment, these techniques can be worked on alone or combined to produce more effective, intelligent, reliable and accurate ODR.

domain of CS. We are focusing on CI techniques in making the system intelligence, among others, to be able to propose a solution based on a given dispute case without having the mediator to interfere (for non-risk case), or give an assistance to mediators to do decision making based on previous similar dispute cases. There are many prospects in this work. Our current goals are, first, we need to examine and follow-up on the community mediation process in Malaysia, especially when the new mediation act has been introduced in June 2012 [34]. Secondly, we will also look more into detailed CI techniques being used in existing ODR, and we are specifically interested to explore the use of connectionist model, that is evolving connectionist system (ECoS) in this work, as this technique is more suitable in supporting intelligent, online environments. By definition, ECoS is an adaptive, incremental learning and knowledge representation system that evolves its structure and functionality, where in the core of the system is a connectionist architecture that consists of neurons (information processing units) and connections between them [35]. REFERENCES [1] [2]

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XI.

CONCLUSION AND FUTURE WORKS

This paper is proposing the integration between the Sulh concept and the ODR technology; where we believe it is high time to have such application in this the era of Internet and to be used by the plural society of Malaysia. The Sulh-based ODR is specifically focusing on community mediation where, as far as we concern, there is none available yet in Malaysia. We also believe that it can be a part of e-government efforts in improving the country’s community mediation processes. Other than making the Sulh-based ODR online and available 24/7, everywhere to Malaysians, there are technical aspects that need to be analyzed in making the system more efficient, accurate and effective. We are in agreement with the authors of the networked health Information Technology ODR work [25] that the challenges to create such system lie in the

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