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Mediation in Moroccan Courts

Morocco adopted Moudawana, the Arabic name of their Personal Status Cise, after their independence in 1956. This code was the reason for severe injustice to Moroccan women. It legitimized polygamy and forced marriages, gave higher rights and status to men by giving them the power to control the household. This decades of torture finally ended in 2004, because of the long struggles of the women campaigns especially the Women’s Action Union, which forced the parliament of the state to pass the Family Code Reform, the turning point in the history of empowerment of women. This code raised the marriage age to 18 years, gave women the right to request divorce unilaterally if ill-treated by the spouse, illegitimate polygamy, and gave women rights of self guardianship and child custody. But, what was remarkable about this code as compared to other codes around the globe was this code made mediation and integral step to be followed for the divorce proceedings. Though mediation, already existed in this Islamic Kingdom, it was for the first time that it was used to deal with matrimonial matters. According to the courts, mediation, not only helps in reducing the burden of cases on the traditional courts but also serves as a relationship protector of the parties in disputes. For cases, where there exists a prior relationship between the parties, the one that could be saved and also saving of which would be beneficial to either, are referred for mediation by the courts. This trend can be witnessed as courts usually urge the matrimonial cases, such as divorce cases for the mediation process in other countries as well. This is backed by the courts giving the reason that young couples might opt for divorce just because of a mere scuffle or negligible difference existing between the couples. Thus, courts recommend mediation where a neutral third party helps the parties in disputes come to a conclusion to their altercation by having an active communication. The mediator here tries to facilitate this communication so that the parties can understand each other’s stances, which might help resolve the dispute completely or to a certain extent and help reach a compromise acceptable to both, preserving the relationship they share. This small step by the Moroccan Ministry depicts the flourishment of the advanced mediation mechanism that would be a stepstone in the legal culture of the country. But what lacks is the implementation to a certain extent. The reason for this being that, though the law enforces have made it compulsory in the divorce proceedings, there still isn’t any defined structure for the process to be conducted. Usually, these mediation processes don’t take place in a comfortable environment but rather in the courtrooms, where the mediator is the judge himself. They aren’t much trained to deal with the mediation procedure. Thus, the parties are under pressure and mediation fails. What Morocco can do is to create a better structure for the enforcement of this clause. It can include mediation in the current legal curriculum of colleges so that young lawyers are aware of it. For this, it can take help from mediators and academicians all across the globe.

  • made mediation and integral step to be followed for the divorce proceedings
  • Family Code Reform
  • advanced mediation mechanism

BY : Udisha Mishra

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