The Personal Status Law No. 10 has fifteen articles. The main features of the new family courts system can be described as follows: First, instead of the old system of dividing family law cases between ‘summary’ and ‘first instance’ courts, the new law stipulates that all cases are to be reviewed in ‘first instance’ family courts. Second, mediation is incorporated into the legal process. Before a disputant can file a lawsuit, he or she is obligated to file for a settlement. This means three settlement specialists, with training in law, psychology, and social work respectively, hold mediation sessions with the two disputants. This process, which is to be concluded within two weeks, takes place in settlement offices that are part of the courts system. Upon the consent of the two disputants, the mediation period can extend to two additional weeks if there is hope of reaching a settlement. If mediation fails, disputants can file a court case within a week. However, if settlement is reached and approved by the disputants, it is legally binding.
Each case is reviewed by a panel of three judges who are assisted by two experts trained in social work and psychology respectively. These experts, one of whom must be a woman, are obligated to attend court sessions, meet with disputants, and submit reports to the court. The role of the experts entails two functions: to provide another opportunity for mediation between the disputants and to submit reports to the judges with information about the dispute, the disputants, and the outcome of the court experts’ mediation efforts.
In addition, a prosecutor office is established in each family court. The role of the prosecutor is to attend all court sessions and to submit to the judges a memorandum of opinion on each case. The rationale is to provide another mechanism through which the adjudication process is improved. All disputes concerning each family are also compiled in a single court file so that the judges can be well-informed about interconnected disputes. Furthermore, special departments have been set up to enforce court judgments. Lastly, court sentences in the new system can only be appealed at the Court of Appeal and not at the Court of Cassation.15
But if we examine more closely the written text of the law, we find some gaps and contradictions, perhaps due to the divergent priorities and understandings of the main actors who lobbied for the new family courts. For example, Article 5 in PSL No. 10 instructs that in each court district, an office for the settlement of family disputes will be established and it will be staffed by three settlement specialists and a director of the office. Article 6 states that disputants are obligated to submit a petition for settlement to the office before they can file a lawsuit in front of the court, and are to meet with the settlement specialists who “after listening to them are to inform them about the different aspects of the dispute and its consequences should they continue with it and are to provide them with advice and guidance with the aim of settlement.” This article does not adequately explain the role of the settlement specialists. Does their giving “advice and guidance” also entail reconciliation efforts? Are they to provide counseling services? How do these functions relate to the goal of mediation and settlement? And which functions or goals constitute the primary role of the settlement specialists? Furthermore, Article 8 in the law legislates that whatever settlement is reached by both disputants with the assistance of the settlement office is binding, but it does not spell out how this settlement is to be implemented. This has led to many implementation problems, which I will discuss in chapter 2.
The ill-defined nature and authority of the settlement offices diverge from Takla’s vision of the alternative mechanisms of dispute resolution in the new courts system. Takla (2003b) envisioned the legal process in the new courts as consisting of three distinct stages: reconciliation, mediation, and litigation. In the first stage, efforts are made to reconcile the disputants. Takla proposed that these efforts be carried out by specialists in family relations, psychology, and family law. If reconciliation efforts fail, then in the second stage the disputants are assisted to reach a resolution to their dispute through a mediated settlement. Takla suggested that this role be carried out by the prosecutor. If mediation also fails, then the disputants resort to litigation, at which point the case is referred to the court, along with the reports of the specialists and mediators. The idea of a reconciliation stage, carried out by the specialists in social work and family counseling, is to create the space for guided healthy communication between the disputants with the aim of attending to the family bond, whereas the second stage (mediation) is about helping the two disputants resolve the conflict and claim their rights through a process mediated by court personnel with legal authority (that is, the prosecutor). In other words, for Takla, the distinction between the three stages, particularly between reconciliation and mediation, is important to ensure that the alternative mechanisms of dispute resolution are robust and can yield meaningful consequences.
In earlier drafts of the law prepared by the Ministry of Justice, there was a proposal that the prosecutor undertake the function of reconciliation. There was also a proposal in another early draft that a religious scholar assist the prosecutor with reconciling the disputants. These suggestions were rejected by the members of the NCW legislative committee (as illustrated in the drafts that Zulficar shared). In an article published in al-Ahram, Takla (2003b) also rejected the proposal that the prosecutor undertake the reconciliation. Takla argued that the prosecutor’s office, due to its inherent legal function, is not suited to reconcile between the disputants. It is in the subsequent stage when disputants need assistance in reaching a legally binding settlement that the prosecutor or a legal figure such as a retired judge can play a role. However, the final draft of the law did not distinguish between reconciliation and mediation; mediation (which was assumed to include efforts of reconciliation) was assigned to the settlement office. It is noteworthy that Takla’s emphasis on the distinction between reconciliation and mediation, a distinction that was absent from the written text as well as the work practices of settlement specialists (more on the latter point in chapter 2), was not motivated by any gender-based concerns. Rather, it was about ensuring that the multidimensional structures and roles of the new courts system function. But what about the position of women’s rights advocates? What were their expectations and concerns regarding the law? And were these aspirations and fears reflected in the written text of the law?
As mentioned earlier, Zulficar’s goal was to draft a law that would institutionalize a specialized, unified, and efficient legal system for personal status disputes—a system which she believed would benefit female disputants. Zulficar’s espousal of alternative dispute resolution mechanisms was thus based on the understanding that this feature was part of what made this kind of court system accessible, quick, and affordable. Unlike some of the women’s rights activists and organizations in the civil society, Zulficar believed that this mediation-based legal system would be beneficial to women and would address some of the gender-based inequalities in the family domain. She did not share the concern that there could be potential gender-based pitfalls in the structures and functions of the new courts system themselves that would impact women negatively. However, a few of the important women’s rights activists and some organizations that worked on the reform of family laws had concerns and reservations about the new law.16 For example, the director of a well-known women’s rights organization was concerned that the mandatory pre-litigation mediation would result in women being forced by settlement specialists to reconcile with their husbands, especially since the substantive personal status laws and the social norms continue to affirm hierarchical gender relations and unequal rights.17 Similar concerns were voiced by another prominent women’s rights activist who has a long experience in advocacy work on the reform of personal status laws.18 This latter interlocutor also pointed out that since disputants normally exhaust all possibilities of mediation through the family, the work of the settlement office was redundant and alien to Egyptian culture, and thus would probably result in either prolonging the legal process or coercing female disputants into reconciliation or unfair and undesired settlements. Similar concerns about how mediation could work against women were also voiced by the director of another well-known women’s rights organization, as well as a prominent women’s rights