Sending the Two Arbiters in the Case of Marital Discord

Question: If we send two arbiters for the sake of marital discord, and the arbiters refuse to pronounce the divorce because they are laypeople and do not dare to do so, is it permissible for the judge to pronounce the divorce or not?

Answer: The scholars (may Allah have mercy on them) differed on this issue. Some held that the arbiters are agents for the spouses and have no authority to separate them except with the consent of both spouses. This view is attributed to Abu Hanifah and al-Shafi'i, and it is the well-known position in the school of Ahmad. According to this view, neither the arbiters nor the judge may separate the spouses except with the husband's consent to the divorce and the wife's consent to pay compensation, if the arbiters deem divorce with compensation to be appropriate.
The second view is that the arbiters may separate the couple if they deem it necessary, either by a divorce without compensation or with compensation paid by the wife. This is the view of 'Ali and Ibn 'Abbas (may Allah be pleased with them), and it is reported from 'Uthman (may Allah be pleased with him). It is the school of Malik and a narration from Ahmad, and it was chosen by Shaykh Taqi al-Din Ibn Taymiyyah. It is the closest to the evidence, because Allah (Glorified and Exalted is He) named them "arbiters," and a judge is permitted to rule without the consent of the party being judged, and because it is the view of the aforementioned Companions (may Allah be pleased with them).
According to this view, if the arbiters do not pronounce the divorce because they are laypeople and fear the consequences, should the judge pronounce the divorce if the arbiters inform him that the spouses' situation is not harmonious? This is a matter for consideration. I have not found any jurist who explicitly stated that it is permissible for the judge to do so, meaning among those whose writings I have examined after research and investigation. Ibn Hazm mentioned that it is established from Sa'id ibn Jubayr that the authority to separate lies with the judge, not the arbiters, if the arbiters inform him of what necessitates separation. According to Sa'id's aforementioned view, it is permissible for the judge to separate the couple if the arbiters inform him of what necessitates separation.
The most cautious course in my opinion is for the judge to refrain from separating them and to strive to advise the arbiters to separate them if they deem it necessary. If they refuse entirely, he should advise the husband to separate and advise the wife to offer what satisfies the husband in terms of compensation. If this is facilitated and separation occurs, that is the desired outcome. If the husband refuses the divorce, or agrees to divorce only with the condition of compensation, and the wife refuses to pay the compensation, the judge should delay them for a period according to his ijtihad (independent legal reasoning), so that they may reconcile, or the husband may allow the divorce, or the wife may agree to pay the compensation. If that does not help and separation does not occur, and they both seek the judge's intervention in the matter, it is permissible for the judge to compel the husband to separate without compensation if his injustice is apparent. If the matter is ambiguous, he should compel the wife to hand over the compensation that the husband gave her, such as dirhams, the value of meat, a shawl, and the like. The morning gift (subhah) falls under the category of the dowry equipment in my view. By "meat," I mean what is given to the wife at the time of marriage, not what the husband eats in his home. I have ruled in this manner twice, and the evidence for this is the story of Thabit ibn Qays with his wife and the saying of the Prophet (peace and blessings be upon him): narrated by al-Bukhari.
The scholar Ibn Muflih said in al-Furu': "Our Shaykh's statements differed regarding its obligation, and some of the noble judges of Damascus compelled it." He ended there. By "our Shaykh," he means Shaykh al-Islam Ibn Taymiyyah, and his meaning is that Shaykh al-Islam deemed it obligatory in one instance and not obligatory in another. The view that it is obligatory for the husband is the closest in my opinion, as mentioned earlier, and it is more cautious than the judge taking it upon himself, and it is a more effective remedy for the root of the husband's dispute. The story of Thabit and his wife is clear proof for this, and praise be to Allah. And Allah knows best. May Allah send prayers and peace upon Muhammad, his family, and his Companions.