Using ADR to address our ever-diversifying society’s family law needs
By Antoinette Raheem
with the contributions of
Holly Thompson, Sayed Mostafa and Eileen Slank
Divorce is never a one size fits all process. However, when the parties to a domestic matter are culturally or otherwise diverse, lawyers should take even more care to address the unique needs of the parties. It goes without saying that, within any group, people are unique and no one group has all the same characteristics. Yet, to the extent our clients may have some common prevalent cultural traits, increasing cultural competence and understanding should be a goal of all lawyers. This article serves as a small step toward exploring that cultural competence. Moreover, this article will address ways in which alternative forms of dispute resolution can often play a key role in respecting the cultural values of families with diverse backgrounds.
In writing this article, I was privileged to interview several attorneys with knowledge of various cultures. These generous professionals included Holly Thompson, a family lawyer and Supreme Court tribal judge very familiar with the Native American Indian culture, Sayed Mostafa, a family law attorney who frequently represents Muslim clients, and Eileen Slank, a family lawyer who has handled domestic matters for Eastern European parties. I am deeply indebted to each of these individuals for sharing their wisdom, experience and time.
Family Law Conflict
Resolution in the Native American Indian Community
The issues addressed in tribal divorces are often different than in many mainstream divorces. For example, Judge Thompson noted that it is rare to have a tribal family dispute over property. While tribal issues over custody may be more prevalent, by in large, children go with their mother after a divorce and her tribe helps to care for the children. If the husband and wife come from different tribes, the wife usually would have joined the husband’s tribe upon marriage. However, the mother normally goes back to her home tribe after a divorce. Whatever tribe the child is a member of usually provides health benefits for the child and parent. While most Native Americans tend to marry other Natives, when a child is the product of a Native American and non-Native, eligibility for tribal benefits may be an issue. Parenting time is rarely disputed and couples tend to be very flexible with parenting time schedules.
Native American families can utilize two formal forums to resolve family law issues—the state court or the tribal court. Whichever court is used, Michigan Child Support Guidelines are generally followed. While Native American parties will use attorneys in court, as needed, Native Americans often do not like bureaucracy. Therefore, there is a tendency to resolve all conflict using internal alternative dispute resolution to obviate the need to go to a formal court for resolution.
One way family law conflict is resolved in some tribal communities is through “Peacemaking.” Peacemaking derives from centuries old traditions and is a culturally based form of mediation. At times, tribal elders serve as the mediators or peacemakers. Some tribes have programs set up with other tribal members guiding the resolution process. Some tribes use prayer and/or medicine. Some follow their tribal religions and values such as the Seven Grandfather Teachings, while some follow Christian, Muslim or other religious traditions. Whoever guides the process and whatever tools or religions are at play, the Peacemaking process is designed to address the cultural mores of the tribal members.
If tribal family disputes do end up in a formal court, the behavior of Native Americans in those court settings may vary from what we often see in mainstream family courts. For example, tribal parties may, out of respect, not look at the judge. They may be extremely reserved and quiet, as it is a sign of disrespect to be loud. Judge Thompson also notes that parties will rarely testify untruthfully in court and, in fact, most often will be honest to a fault.
Despite these generalities, it is important to remember that all Native Americans are different. Not only are there the religious differences noted above, but also many other differences are at play. For example, some tribes are matrilineal while others are patrilineal, some tribes may have one emotionally and culturally significant view of the cutting of the child’s hair, while parties of different tribes may have another. There are 12 different federally recognized tribes in Michigan and each has its own unique values, traditions and procedures. Judge Thompson notes that family law practitioners and judges working with Native American families should be sensitive to their culture, as most Native Americans want their issues decided pursuant to their cultural values.
In summation, Native Americans often utilize their own tribal ‘ADR’ to resolve divorce issues. When they foray into traditional courts, it is still important to recognize the importance to many Native Americans of addressing culture in their dispute resolution process. While backgrounds and cultures may vary widely within the Native American community, careful inquiry regarding the significance of culture to your Native American clients should be pursued as a matter of respect.
Family Law Conflict
Resolution in the Muslim American Community
Sayed Mostafa is an American Muslim attorney practicing in Wayne and Oakland counties. He has both a degree from a U.S. law school and a degree in Islamic law. Mostafa points out that the Quran directs Muslims to live at peace with one another. According to the Quran, when spouses have a disagreement, they are to seek peace; if both want peace, God will make it happen. For this reason, among others, many Muslim Americans, especially in the older generation, will not go to court to have their family law disputes resolved unless all else fails. While some younger Muslim Americans will seek court intervention in their family law disputes, family members and respected community members usually encourage them to first pursue resolution through one or more of the Islamic forms of ADR described below.
An overarching term for vehicles of peace in Islam is Sulah, which includes mediation, negotiation and other forms of conciliation. In short, Muslims are encouraged to avoid having their disputes resolved in court to the extent possible and to utilize Sulah instead. Another peacemaking process used in the Muslim community for family law disputes is Tahkim, which is essentially non-binding arbitration. Through this process, each spouse chooses an arbitrator, usually not a lawyer, who helps the parties to seek a peaceful resolution.
Islamic law also supports what Western law refers to as Med/Arb—a combination of Mediation and Arbitration. This process begins with a third party facilitating the parties as they try to reach an agreement among themselves. If that does not happen, a third party will decide their family law issues for them. Imams, Islamic religious leaders, often fill the role of Mediator/Arbitrator, although laypersons may serve this function as well.
Islamic divorce has several unique characteristics, notes Mostafa. One is that Muslims must be religiously divorced (by Talaq) in addition to being legally divorced. A husband, with a few exceptions, has the unilateral right to grant a wife a religious divorce. If a religious divorce is not granted, the wife is not divorced under Islamic law. One of the exceptions to that unilateral right of the husband is if a husband inflicts upon the wife physical, mental or financial harm. However, the wife always has the right to go to court to ask for custody of the children.
Family law courts cannot force an Islamic husband to give his wife a religious divorce. However, to encourage a husband to grant a religious divorce, some courts will impose spousal support on the husband for every month he does not grant the religious divorce. Imams issue the religious divorce, although it is usually not put in writing until the legal divorce is final. Islamic divorces frequently come before legal divorces if the couple has no children. Legal divorces, in most instances, precede Islamic divorces if children are involved.
Mostafa points out that, under Islamic law and culture, the road to divorce is paved with many required steps, with extensive familial involvement, to encourage reconciliation. If a couple is having marital problems, the wife usually will first approach her mother and relate the problems to her. The mother then will go to the wife’s father who will approach the father of the husband. The husband’s father will then talk with the husband to see if he can help the couple resolve their differences. If not, the wife’s father and the husband’s father will get together and see if they can help work out reconciliation. If that fails, a third party is called in to assist. If that person is unable to reconcile the parties, then the final step is usually to go to an Imam.
While Islamic couples legally follow the custody, property division and support laws of their resident country, Islamic law is still a major factor in the divorce of Muslim Americans. This Islamic law places a high premium on pursuing peace as much as possible. In line with this principle, attorney Mostafa has served as a mediator and arbitrator in many Islamic family law disputes. Moreover, as a Muslim family law attorney, Mostafa believes it is important for a family lawyer in an Islamic couple’s divorce to always make sure the couple has pursued every option for reconciliation before proceeding with the divorce. This way the family law attorney assures that the couple has fulfilled their obligation to seek peace where at all possible.
Family Law Conflict
Resolution in The Eastern European American Community
Eileen Slank is a family law attorney in Ann Arbor. In representing a client of Eastern European descent in a highly contentious divorce, Slank learned early on the significance of culture in a divorce where the wife was half Russian and half Armenian, while the husband was 100% Armenian.
The first cultural difference Slank noted in this divorce was the extended family support each party brought to the divorce process. The wife’s two brothers accompanied her in all meetings with her attorney. Similarly, the husband, who lived in a community of virtually all people of Armenian descent, had the backing of his entire village throughout the divorce. This support included financial as well as moral support, which is typical in his culture.
Slank learned, during the process of the divorce, that Eastern European culture has a caste system. Under this caste system, the husband and his full-blooded Armenian fellow villagers, looked down on the wife because she was only half Armenian. The influence of the “village” on decisions the husband made and positions he took was evident throughout the divorce. Likewise, the wife’s brothers attempted to navigate her decision making in meetings with Slank. To help offset the brothers’ undue influence, Slank learned to enforce a rule in meetings between her and the client and client’s brothers that only English be spoken.
Slank encountered some other unique issues in this divorce that arose out of the parties’ cultural background. For instance, the husband was extremely upset that the wife was considering keeping his name. In essence, in his culture, once the parties divorced, the wife had no right to continue the “privilege” of keeping the husband’s name. Another cultural factor that came into play was the parties’ willingness to abide by specific agreements, but nothing beyond that. As a result, Slank noted, all terms agreed upon had to be very specifically spelled out to assure compliance with the spirit of the agreement.
The form of ADR Slank utilized for resolution of most of the issues in this matter was a mediative style of negotiation. In short, serving as a pursuer of peace, Slank and her client worked with the husband and his attorney to resolve most of the parties’ issues. That this was possible, despite the long history of physical abuse by the husband, is a true testament to Slank’s dispute resolution skills. Another factor Slank discovered, which may have contributed to the parties’ willingness to negotiate, was a paranoia of the government by many from these parties’ culture. Some issues did have to be decided by the court, but they were few.
In answering the question, “Knowing what you know now, what would you do differently if faced in the future with similar cultural issues?,” Slank replied that she would begin with asking very specific questions about each party’s culture. She would ask the client to explain the impact of culture on the issues in the case. She would inquire about family and family dynamics. She would ask about any cultural biases or stereotypes at play in the case. Most importantly, Slank noted, any family law attorney involved in a case with parties from unfamiliar cultures should know that there is a lot to learn. She urges attorneys to not to be afraid to make respectful inquiry about culture, while carefully avoiding stereotyping. By asking such questions and using mediation or negotiation to reach resolution, the parties in her case were able to attain many creative agreements that the court would never have ordered.
Conclusion
In meeting our obligation to zealously represent our clients, it is of paramount importance to understand, to the extent possible, our clients’ unique cultural values and needs. This is attained by research, respectful inquiry and a healthy openness to the individuality of everyone, no matter their culture. ADR, being flexible, party driven and creative, can often be a valuable tool in addressing the variant needs of family law clients from diverse backgrounds.
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This article was previously published, minus some current revisions, in the State Bar of Michigan Family Law Journal.
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Antoinette (Toni) Raheem has over 35 years of litigation experience, and for the past 15+ years, has focused her practice on Alternative Dispute Resolution. She arbitrates and mediates all civil (e.g. business, employment, contract, real estate, civil rights, tort) and domestic cases, is a case evaluator and fact finder, teaches Negotiation at Michigan State University College of Law, and teaches ADR at Western Michigan University Cooley Law School. Raheem is a SCAO approved ADR trainer, an approved mediator in numerous Michigan counties and trains ADR nationally. She is a member of Professional Resolution Experts of Michigan (https://premiadr.com).
