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Settling Disputes – From Mediation to Strict Law

 

A great deal of ink – and blood – has been spilled trying to understand what law and justice are supposed to be. Do we believe in bringing disputing parties together, in mediation, regardless of underlying legal principles? Or do we believe that The Law Is The Law and that any concessions that stray from legal principles are in fact illegal?

This is hardly a small question; it is foundational for any civilization. Kafka wrote extensively on how different legal theories and systems can lead to increasingly perverse outcomes. One could compare, as he does, a legal system that only considers motive (where the desire to kill is considered murder) versus one that only considers outcomes (where “act of god” manslaughter is treated the same as premeditated murder). (Either of these extremes easily becomes farcical, but that is hardly surprising: any and every system has farcical outcomes as a matter of course.)

Within any “good” legal system we have the neverending quest to try to pin the judgment pin on the donkey, somewhere between its strict legal head, and merciful tail. Lady justice is blindfolded, after all, so the pin might end up just about anywhere. This is one of the reasons why trials are so risky; justice is inherently human, and so it is mercurial at best.

While law may be somewhat arbitrary (consider just how many different plausible legal systems there are in the world, and how their outcomes differ from each other), I’d like to argue that the ideal process of settling disputes may, in fact, be a surprisingly consistent solution, regardless of the law itself.

Instead of thinking of strict law and mercy as polar opposites, perhaps it might be helpful to think of them as part of a continuum. It is possible for a legal system to be both merciful and just – just not at the same time and place. Here is how the Torah does it:

Thou shalt provide out of all the people able men, who fear G-d, men of good faith, hating unjust gain: and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And let them judge the people at all seasons; and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge themselves (Ex. 18:21-22)

Adopting this system is more than a management reorg. And it is also more than the simple optics: that people would see justice was done because there was a process. The biggest and most important outcome that came from this organizational structure was that dispute settlement became a process, and a process which would change and grow as a given case moved up through the courts. Here is how it works:

The first “judge” would be one man in ten – an everyday fellow who almost certainly had a personal relationship with the disputants in his group. In other words, this first judge was the farthest thing imaginable from a High Court in a Distant Tower. He was more likely to be Norm from Cheers than the Grand Inquisitor. So when a dispute was brought to Norm, it is easy to understand that there was precious little actual law involved. Norm, after all, expects to have to live with the complainants as a neighbor – the last thing he wants to be is heavy-handed or take on airs. Instead, the approach would be “can’t we figure this out between us?”

If the parties could not be mollified in this way, then the case would be moved up, and as it worked its way up, the settlement method went farther away from the informal mediation between neighbors, and closer to a purer, absolute form of law that was handed down from On High. In other words, justice in this process was not about the law itself, but about a progression within the settlement of disputes that started with the language of relationships and mercy and mediation, and moved, step by step toward a much more impersonal judgment based on divinely-delivered legal principles. Ultimately, judgment from Moses (or the top court of the land) was not appealable, so if you insisted on taking a case all the way up, then you had to be prepared to accept whatever was handed down.

The Torah itself is quite light on the actual underlying law for any civil code, besides general statements of principles. But this specificity tells us what we need to know:

  • In order to be satisfied, disputants need to be heard
  • It is not enough that justice is done: it needs to be seen to be done.
  • The best resolutions are based on close relationships and mediation
  • Mutual satisfaction of the parties is more important than legal principles
  • Strict Justice (the cold hand of the law) is a last resort, when every mediation effort has failed.

This is not, of course, to suggest that mediation is ideal; it is to point out that the Torah reckons that mediation is a good place to start. Law From On High remained available for those who insist on it, if they were stubborn enough to make that demand.

One interesting corollary is that once a case is out of Norm’s hands, then he can shrug, with no hard feelings. After all, any ruling from a higher court was not his doing. Societal cohesion is thus reinforced through this process, in multiple ways.

Today, of course, our legal system tries, in its own way to achieve similar goals: judges invariably urge disputants to work things out themselves – though they don’t typically have the structure of judges which allows for multiple escalating steps. But the underlying Torah principle bears remembering: justice is about both mercy and law. But they do not apply at the same time.

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There are 13 comments.

  1. Member

    Interesting topic. I agree with you that our legal system today does have similar goals, and I would argue a similar structure with locally elected trial judges (not quite Norm from Cheers – but your mileage may vary), and then a couple levels of appeals courts. Of course, even the trial judges are supposed to rule on the basis of law, rather than equity (except when the law gives them that discretion).

    Of course, at one time, even in our legal tradition we had separate courts of equity and courts of law, which is how “attorney at law” became a phrase.

    Now they are mostly merged, though as I mentioned certain areas of the law give judges the discretion to rule on the equities of the situation. This is most commonly found in things like family law and criminal sentencing. Appeals courts will almost never disturb a trial court’s ruling where they have that discretion.

    Trial judges do often encourage parties to settle. In family law cases, I almost always encourage clients to work out their own arrangement, even if it’s not quite what the law would dictate. I most commonly see this in setting child support or spousal support numbers.

    All in all, I think it’s not too far from what you described from the Torah. That’s probably no coincidence.

    • #1
    • February 11, 2018 at 6:39 pm
    • 3 likes
  2. Contributor

    iWe: Adopting this system is more than a management reorg. And it is also more than the simple optics: that people would see justice was done, because there was a process. The biggest and most important outcome that came from this organizational structure was that dispute settlement became a process, and a process which would change and grow as a given case moved up through the courts.

    Interesting post. Court-mandated arbitration and out-of-court mediation (civil, family, etc) whereby the facilitator appointed is usually a retired judge or trained mediation expert still must follow the tenets of the law, but in regard to your post, does this not allow the ‘process’ itself to have an impact of out of court decisions by all parties?

    • #2
    • February 11, 2018 at 6:48 pm
    • Like
  3. Thatcher

    Bookmarked – I shall return…Update:  I’m back. Absolutely…For those matters that are amenable to process; the principle of subsidiarity  seems to be illustrated here. Slightly tangential to the post, but I’m moved to ask: where does today’s fascination with “zero-tolerance” fit in to this process that includes mercy as a factor? Thanks, @iwe, as always! Shavua Tov!

    • #3
    • February 11, 2018 at 8:34 pm
    • 1 like
  4. Reagan
    iWe Post author

    Dave Sussman (View Comment):
    does this not allow the ‘process’ itself to have an impact of out of court decisions by all parties?

    Absolutely, it does.

    We don’t always acknowledge just how powerful the process is in affecting our decision-making. Civil “justice” in the US takes so very long and costs so very much that, as Mark Steyn points out, the process is the punishment.

    If you follow the incentives, the US court system is quite good, perversely, at destroying the little guy by ensuring that he cannot afford the time or money it takes to achieve a result. There is no mercy or law in such a game.

    • #4
    • February 12, 2018 at 1:43 am
    • 4 likes
  5. Contributor

    Thanks, @iwe. This puts a human face on the process which can be so adversarial in this country. It’s interesting to me that either party might realize that the process will be more personal at the lowest level, so a mediator is more likely to care about the parties. If they fail at that level and have to move up through the system, either party might realize that the “empathy” factor disappears, and that might be disturbing. So although steps are provided for appeal, I would think that people would be more likely or willing to settle early, since the mediator will care about a productive result. Then again, I haven’t had to go through the process!

    • #5
    • February 12, 2018 at 6:18 am
    • 1 like
  6. Member

    Interesting. Puts some theoretical foundations on my preferred dispute resolution clause for business agreements between large-ish companies: Before either could file a lawsuit against the other claiming breach of the agreement, the CEO’s of the companies had to meet. Disputes always got resolved at the division manager or lower level (and without filing a lawsuit) because no one wanted to tell their CEO that they couldn’t resolve the matter themselves.

    • #6
    • February 12, 2018 at 9:47 am
    • 5 likes
  7. Member

    Full Size Tabby (View Comment):
    Interesting. Puts some theoretical foundations on my preferred dispute resolution clause for business agreements between large-ish companies: Before either could file a lawsuit against the other claiming breach of the agreement, the CEO’s of the companies had to meet. Disputes always got resolved at the division manager or lower level (and without filing a lawsuit) because no one wanted to tell their CEO that they couldn’t resolve the matter themselves.

    iWe (View Comment):
    There is no mercy or law in such a game

    That is in large part an outgrowth of the sheer number and pervasiveness of laws and regulations.

    • #7
    • February 12, 2018 at 4:31 pm
    • 1 like
  8. Member

    Any parties with a dispute are free to contract to have it arbitrated, by anyone they agree on. And there will be no appeal, absent gross irregularity. I had one such case and it was a nightmare–no record, No discovery. Relaxed ar absent “rules”–I remember saying to the arbitrator, about day 5 when I was desperate for more time to rebut some novel contention, “Your decision, Sir, is like the law of the Medes and the Persians: once it is written down it cannot be changed.” ( I was allowed to proceed.)

    That’s arbitration. “Mediation” on the other hand, is usually a waste of time, (and money, if counsel is involved and if they seek the services of a mediator), an extra step. There will be no binding decision,; the parties may reach agreement, and in the course of the discusssions they’ll learn a lot about the strength of their adversary’s position.

    It is, of course, something the parties are always free to do, completely on their own, and it needn’t cost them anything. But should it be mandatory in the legal system? In my opinion, no. The courts in our country are to be open to all. Litigants who would rather avail themselves of the court system should not be forced to go through a charade of seeking amicable resolution from an adversary with whom they aren’t inclined to deal.

    The emphasis in recent years on “alternative dispute resolution” has, predictably, led to a shortage of attorneys who are competent to perform a jury trial in case anybody wants one.

    • #8
    • February 12, 2018 at 4:38 pm
    • Like
  9. Member

    A foundational problem is: how do you define morality and inculcate moral behavior in a society.

    Is there a moral instinct? If there is, does it develop with age? Are we a tabula rasa? These questions have pedagogical implications.


    The great Tao fades away
    There is benevolence and justice
    Intelligence comes forth
    There is great deception
    The six relations are not harmonious
    There is filial piety and kind affection
    The country is in confused chaos
    There are loyal ministers

    (When people forsake the great Tao, so that it fades away and perishes in their thoughts, concepts like benevolence, compassion, justice and righteousness appear in the world.
    When intelligence, book knowledge and cleverness become widespread in the world, we end up with great hypocrisy and deception everywhere
    When the six family relationships – parent, child, older sibling, younger sibling, husband, wife – are in a state of disharmony, concepts like filial piety, obedience, and the kind affection of parental love become important and significant.
    When the country is in a state of chaos and anarchy, it becomes crucial to make the distinction between ministers who are loyal, and those who are not.)

    Tao te ching §18

    Derek Lin translation

    Speaking of chaos and misrule, Andrew McCarthy’s “I was wrong” (“that the FBI and Justice Department would not countenance the provision to the FISA court of uncorroborated allegations of heinous misconduct… [that] the FBI would independently verify any important facts presented to the court, make any disclosures that ought in fairness be made so the judge could evaluate the credibility of the sources, and compellingly demonstrate probable cause”) is echoed by Clarice Feldman writing for American Thinker. She writes

    I have been wondering why, shortly after Judge Rudolph Contreras was (without explanation) recused from hearing the Michael Flynn case and Judge Emmet G. Sullivan took over, Special Counsel Robert Mueller agreed to postpone the sentencing until May, after the inspector general’s report is due.

    Note that is “was recused” and not “recused himself.”

    She goes on:

    I missed it earlier, but on December 12 of last year, Judge Sullivan issued a tough demand of the prosecution. They are compelled immediately to turn over all exculpatory material in their possession to General Flynn. The last paragraph of the order is particularly strong:

    Finally, if the government has identified any information which is favorable to the defendant but which the government believes is not material, the government shall submit the material to the Court for in camera review.

    Judge Sullivan no longer starts with the presumption that federal prosecutors will behave in an ethical manner. Why?

    He was made aware – too late for the trial – of the unethical conduct of the Department of Justice lawyers who prosecuted Senator Ted Stevens. He has proposed that all federal judges issue the same sort of orders, specifically noting how the government abused its powers and withheld evidence against Senator Stevens that would have cleared him of the charges brought against him.

    • #9
    • February 13, 2018 at 6:43 am
    • 2 likes
  10. Member

    The OP is also incomplete. Much has been written about the militarization of the police and about the implications of the national security state.

    “Strict law” really conflates civilian and military rule.

    Again Derek Lin, this time from his translation of §57 with his comments:

    Govern a country with upright integrity
    Deploy the military with surprise tactics
    Take the world with non-interference
    How do I know this is so?
    With the following:
    When there are many restrictions in the world
    The people become more impoverished
    When people have many sharp weapons
    The country becomes more chaotic
    When people have many clever tricks
    More strange things occur
    The more laws are posted
    The more robbers and thieves there are…

    Ruling a country and using the military are two sides of the coin, and require two different approaches. Using clever tactics to surprise and confuse the enemy is extremely advantageous in that victory can be quickly achieved with minimal loss of troops. Ruling a country is just the opposite. You wouldn’t want to use clever tactics to surprise and confuse your own people. Instead, you want to treat them with straightforward honesty, and communicate in a way that is clear and easy to understand.
    The ruler who meddles always ends up with poor results. Therefore, wise rulers refrain from interference. They don’t try to change people – it is an impossible and thankless task. Instead, they let nature take its course. Their role is to provide gentle guidance.
    Throughout history, sages have studied human society and made careful observations. They note that the more rules and regulations there are, the poorer people become. This in turn weakens the ruler’s power base – exactly the opposite of what the ruler tried to achieve with rules and regulations in the first place.
    In such a restrictive and impoverished environment, many people turn to crime as a way to survive. They take up weapons to steal or rob; violence and chaos increase as a result. They also become increasingly tricky in attempts to get around restrictions or exploit loop holes. Their cunning will often yield surprising and even bizarre results….

    [continued]

    • #10
    • February 13, 2018 at 7:14 am
    • Like
  11. Member

    The timing of the OP is very apt. By the Jewish calendar, the month of Adar begins with the upcoming new moon. Adar is notable because Purim falls on its full moon. The main public observance of the festival is the public reading of the Book of Esther.

    For a text in the biblical canon, Esther is strange. To begin with, the name of G-d doesn’t appear in it at all. (Esther is the name of the heroine, and her name can also be read as “I shall conceal.” That is, G-d is present, but His hand is hidden.) The action appears to be purely natural and historical.

    And action there is. The fast moving and racy narrative has a sort of operatic or Bollywood feel to it. The King, Ahasuerus (variously identified as Xerxes I and Artaxerxes I or II) is, in addition to being an absolute ruler whose decrees can’t be changed even if he himself wants to, a total jerk – which, in an absolute ruler, isn’t funny at all.

    He has a huge drunken banquet for his retinue, and his queen, Vashti, has a banquet for the women. After seven days of drinking, the king wants to show his buddies what a beauty the queen is, so he sends for her:

    …bring Vashti the queen before the king with the crown royal, to show the peoples and the princes her beauty; for she was fair to look on commands her to put on her crown and appear at his banquet…

    Jewish tradition says “with the crown” means “wearing nothing but the crown.” She refuses. Ahasuerus is angry. After some scheming with his staff, he announces that in disobeying the king, Vashti has also threatened the respect all wives owe their husbands and therefore endangered the realm. She is out. This decree is promulgated empire wide.

    To replace her, a giant beauty contest is decreed. Beautiful young women will be sent from all over the empire to the master of the king’s harem, where they will be basically marinated in perfumed oils.

    There’s a Jew in the palace of aristocratic descent. His name is Mordecai, and he has brought up his beautiful orphaned niece Esther. You know where this is going.

    Esther, duly marinated, is called for her night with the king, he falls in love, makes her queen in Vashti’s place.

    Meanwhile, Mordecai overhears two chamberlains plotting against the king, he passes the word to Esther, the plot is foiled and the villains are hanged. The events are duly recorded in the palace archives.

    • #11
    • February 13, 2018 at 8:00 am
    • Like
  12. Member

    Meanwhile, Haman the Agagite (whom the text will soon reveal to be the villain) gets elevated to the number two guy in the realm; the king commands all the other princes to bow and prostrate themselves to Haman. Not explicit in the text but known to hearers who know their Bible, Haman would not exist but for King Saul’s having defied the prophet Samuel and spared Agag the king of Amalek.

    But Mordecai refuses; the other courtiers rat him out to Haman

    …to see whether Mordecai’s words would stand; for he had told them that he was a Jew.

    Haman now reveals why he has become the archetypal antisemite. Not only is he enraged by this disrespect,

    …it seemed contemptible in his eyes to lay hands on Mordecai alone; for they had made known to him the people of Mordecai; wherefore Haman sought to destroy all the Jews that were throughout the whole kingdom of Ahasuerus, even the people of Mordecai.

    Haman gets Ahasuerus to promulgate this irrevocable decree, the plot is set in motion.

    Events now unfold as expected. Esther vacillates and is rebuked by Mordecai, she fasts and prays, orders all the Jews to do likewise. Despite not having been summoned by the king for a month, she appears, unsummoned (a potentially fatal move) before the king. He listens to her plea, agrees to do whatever she asks. She arranges a banquet for the king.

    He can’t sleep, calls for the records of his reign to be read to him… and the story of the foiled assassination comes up. “Hey, whatever happened to Mordecai? Did we reward him for this?” “No, boss. Nothing.”

    In comes Haman. The 75′ gallows, or maybe the impaling post, is all ready for Mordecai.

    “Hey, Haman.

    What shall be done unto the man whom the king delighteth to honour?”

    Haman, to himself: Who could that be but me?

    To the king:

    let royal apparel be brought which the king useth to wear, and the horse that the king rideth upon, and on whose head a crown royal is set; and let the apparel and the horse be delivered to the hand of one of the king’s most noble princes, that they may array the man therewith whom the king delighteth to honour, and cause him to ride on horseback through the street of the city, and proclaim before him: “Thus shall it be done to the man whom the king delighteth to honour.”

    The king: “Great! Perfect! do that for Mordecai.”

    Done.

    Haman further disgraces himself, is condemned to death, and he and his sons are put to death on the gallows or whatever he had prepared for Mordecai.

    The king’s decree is immutable, but he now decrees that the Jews can defend themselves. They do, much slaughter ensues, and everything ends happily, with the admonition for Jews in the future to “read this Purim letter” which, by the time that line comes up, has just been accomplished.

    • #12
    • February 13, 2018 at 8:26 am
    • Like
  13. Member

    You see what I mean about Bollywood. One further detail: Haman had promised the king a lot of money for the privilege of murdering and robbing the Jews, but when the Jews fought off their enemies they did not loot them.

    Also Bollywood like, Purim is today celebrated with costumes (more concealment.) The streets of Israel will be filled with little girls dressed as Queen Esther. Parties, drinking, somewhat anarchic behavior in yeshivas. Everything is topsy turvy.

    But it’s not that simple. To show that, I’ll turn to a Purim in extremis.

    It is 1940 in the Warsaw Ghetto. Rav Kalonymous Kalman Shapira is there with a shrinking and terrorized group of hasidim. His son, daughter-in-law, and sister-in-law had been killed in the 1939 Nazi bombing of Warsaw, and he himself died in Trawniki concentration camp, whose inmates were all shot after the Sobibor and Treblinka uprisings.

    Yet it is a divine commandment to celebrate the holidays with joy. How could Rav Shapira help his congregation – already suffering terrible grief and rightly fearing that they would not survive – to find this in themselves?

    He pointed to the Zohar, which compares Purim and Yom Kippur (Yom HaKippurim, the day which is K’ (like) Purim!) This Zohar is strange. On Yom Kippur we fast and afflict ourselves, Purim is celebrated with a festive meal, sending food and drink to others, giving money to the poor – expansive, quasi-aristocratic behavior.

    So Rav Shapira told them

    If you are not in the mood to fast on Yom Kippur, what do you do? Fast, of course! Hashem demands it, whether we are agreeable to it or not. Purim is no different! The avodah (service) is simchah (rejoicing.) We are all obligated to force ourselves to find a bit of simchah on this day.

    “At the same time, remember that the [Talmud] says that Yom Kippur is effective even for those who do not do perfect, complete teshuvah (repentance.) Even a bit of teshuvah brings kaparah, (atonement.) The Holy One, Blessed be He, builds upon what we begin, cherishes it, turns it into something bigger. So it will be with our avodah of Purim. If we find even a small amount of simchah, Hashem will take it and apply it to the redemption that is advanced through the avodah of this great day.”

    He is telling us that simcha is not an accident, it’s not just a nice happy feeling, it is a very consequential choice. May Hashem avenge his and his congregation’s martyred blood.

    There are times when we are called upon to do the contrary of what our feelings are. May we recognize the moment and act accordingly.

    Lyrics from Esther 9:1: “it was turned to the contrary, that the Jews had rule over them that hated them”

    • #13
    • February 13, 2018 at 9:31 am
    • 1 like