MEDIATION


MEDIATION, an alternative means for the resolution of disputes in which the mediator, a neutral professional, meets with the parties to the dispute and aids them in reaching an agreed upon resolution. Unlike a judge, the mediator has no authority to render a decision in the dispute. In the mediation process, the parties are given the opportunity to express themselves, to voice their arguments, and to reach, by themselves, a solution that is appropriate for them.

Mediation is appropriate for the resolution of most types of disputes, be they commercial disputes, private disputes, disputes regarding the family, or even public disputes and international disputes between states.

Jewish legal literature contains many sources that refer to disputes. Many of these sources point to the increase in litigation and consider the use of the judicial process, terminating in a definitive judicial decision as the preferred method to resolve disputes.

Alongside this approach, there are many sources that refer approvingly to making peace between parties, whether this is achieved by a dayyan (rabbinical court judge) in the rabbinical court who works out a "compromise" between the parties (see *Compromise), or by means of mediation that takes place outside the court. It seems that it was not coincidental that the Israeli legislature, in Section 2 of the Foundations of Law Act, 5740 – 1980, provided that "peace" is one of the values according to which the court is obligated to act in the case of a lacuna, a unique provision in comparison to legal systems in other countries. Thus, where the court encounters a legal question which must be resolved, and it is not addressed in legislation or case law and cannot be resolved by way of analogy, the court is instructed to decide "in light of the principles of freedom, justice, equity and peace of the Jewish tradition."

An expression of the important role of "peace," alongside that of "law" as a means to dispute resolution, may be seen in the Book of Zechariah, 8:16, "…execute the judgment of truth and peace in your gates." The Mishnah in Avot elaborates upon this verse, stating: "The world exists on three foundations: On truth, on judgment, and on peace." The verse from the Book of Zechariah served as the basis for the teaching of the sages in the Mishnah, as follows: "What is the judgment that contains peace? Let it be said: it is compromise." The Maharsha – Rabbi Samuel Edels, a rabbinic sage in Poland in the 16th century – commented as follows: "Compromise is arrived at with the agreement and willingness of both of the parties, which is not the case with judgment." (For further explication of this subject see the opinion of Justice Menachem Elon in CA 61/84 Biazi v. Levi, 42(1) PD 446.)

As opposed to modern legal systems that view the court as a central means for conflict resolution, the Torah commands each individual – and not just the legal institution – to try to bring about accord between opponents in a dispute. An expression of this is found in the Mishnah in tractate Pe'ah, that is recited daily in the morning prayers: "These are things that have no measure [that the reward for them is immeasurably great] …a person enjoys their interest in this world and the principle awaits him in the world to come: …and making peace between people and between a husband and his wife" (the last phrase, "between a husband and his wife," does not appear in all of the ancient manuscripts of the Mishnah, but is found in some of the versions of the prayer and is common in the Sephardi and the Eastern versions of the prayer).

In his classic commentary on the Mishnah, the author of Tiferet Yisrael, Rabbi Israel Lipschutz (Germany, 18th century), discusses the special expression "bringing peace" rather than "making peace," and he comments as follows:

Bringing peace – even if the two parties do not desire it, one should go to the trouble of persuading them to come together and bring about peace between them. And this is the reason that the tanna did not say "to make peace" but rather "to bring peace," in other words, to bring counsel from afar in order to compel them by his soft words to bring peace between them.

In the Midrash, the figure of Aaron the Priest, about whom it was said in the Mishnah (Avot 1:12) that he "loved peace and pursued peace," serves as the archetype for the commandments of bringing about peace. The Talmud even contrasts between Moses, the head of the judges and Aaron's brother, and Aaron, who serves as a symbol for mediators seeking to resolve disputes outside of court: "Moses used to say: The law must be carried out to its fullest, but Aaron loved peace and pursued peace, and made peace between people." Rashi commented "Because he would hear the disputes between them before they came before him for a judgment, he would pursue them and impose peace between them." In other words, as is the case with modern day mediation proceedings, the "mediator," Aaron the Priest, met with the parties before the legal hearing and outside of the "court," in order to spare them the pain and suffering that accompany the legal proceedings.

The end product of mediation, unlike a legal proceeding, is not a legal decision in which one side prevails and the other side feels that he has lost, but rather the end of the conflict and its resolution in a "peaceful" manner, in which both sides feel that they are satisfied.

An interesting description of the mediation process is found in Avot de-Rabbi Nathan (12:3): "Two people had quarreled with one another. Aaron went and sat with one of them. He said to him: My son, look what your friend has done, his heart is distraught and he has torn his clothes (out of sorrow regarding the quarrel), and he is saying: Woe is to me, how will I raise up my head and look at my friend? I am embarrassed in his presence, because I am the one who wronged him. And he [Aaron] sits with him until he removes the jealousy from his heart. And Aaron then goes and sits with the other party and says to him: My son, see what your friend has done, his heart is distraught and he has torn his clothes and he is saying: Woe is to me, how will I raise up my head and look at my friend? I am embarrassed in his presence, because I am the one who wronged him. And he [Aaron] sits with him until he removes the jealousy from his heart. And when they met [the two opponents who carried on the dispute between them], they embraced and kissed one another."

According to the description in this Midrash, Aaron the Priest uses a technique similar to that used by contemporary mediators, of holding separate mediation meetings alongside the joint meetings, with the goal of aiding the parties to end the dispute. In this respect as well, the difference between the mediation process and a court proceeding, which has to be held in the presence of both of the parties, is readily apparent.

It is not unusual for a dispute between parties to be so serious that the two parties cannot communicate with each other. Due to the lack of trust between them, each one is suspicious of the other and holding separate meetings allows them to express themselves freely in front of the mediator and to talk about their feelings in a calm and non-threatening atmosphere, without worrying that what they say will be conveyed to the other party. In this manner, the mediator can assist each of the sides to identify his interests and needs, and to understand the interests of the other party. In the case described in Avot de-Rabbi Nathan, the mediator uses "neutral" language, while emphasizing points that are likely to lead to a resolution of the dispute. Aaron the Priest emphasizes the sorrow of the other party to create an opening to decrease the tension between the parties and to encourage discussion between them. Unlike a judge, the mediator does not express an opinion regarding the dispute before him. He abstains from "awarding grades" to the parties to the dispute, does not appraise their character, and does not judge their deeds. His role is purely one of assisting in carrying out the negotiations between them to resolve the dispute.

In Court Decisions in Israel

Israeli law accords a wide degree of expression to the desired place of reaching a compromise by the court, relying on the position of the Jewish Law sources regarding this matter (see, for example, CA 807/77 Sobol v. Goldman, 33(1) PD 789, per Justice Elon and HCJ 2222/99 Gabai v. The Rabbinical Court of Appeals, 54(5) PD 401; see *Compromise). However, a distinction must be made between a compromise arrived at by a judge and a mediation proceeding handled by a neutral professional outside of the courtroom. Section 79c of the Courts Law [consolidated version], 5744 – 1984, refers to mediation, along with compromises that take place within the court, as appropriate proceedings for the resolution of disputes. Pursuant to that section, "the court may, with the agreement of the parties, transfer a matter in litigation to mediation." If the parties reach an agreement in the mediation, the court is authorized to give the agreement the force of a judgment. Detailed regulations have been enacted to govern the mediation process.

BIBLIOGRAPHY:

M. Elon, "Ha-Din, Ha-Emet, Ha-Shalom ve-ha-Pesharah: Al Sheloshah ve-Arba'ah Amudei ha-Mishpat ve-ha-Ḥevrah," in: Meḥkarei Mishpat, 14 (5758 – 1998), 269–342; Y. Bazak, "Yishuv Sikhsukhim be-Derekh shel Pesharah ba-Mishpat ha-Ivri," in: Sinai, 71 (5732 – 1972), 64; A. Hacohen, "Lo Yakhlu Dabru le-ShalomGishur, Pishur, ve-Yishuv Sikhsukhim," in: The Ministry of Justice, Daf Parashat ha-Shavu'a, 54 (5762 – 2002); E. Shochetman, Seder ha-Din (5748 – 1988), 208–16.

[Elisheva Hacohen (2nd ed.)]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.