Rabbi Yehoshua Ben Korchah says, “It is a meritorious deed for a judge to arbitrate a compromise. As it is stated: ‘Execute truth and judgment of peace in your gates.’ [Zechariah 8:16] But where there is judgment, there is no peace. And where there is peace there is no judgment. What is the judgment which has within it elements of peace. I would say this is compromise. And likewise in connection with David it is stated: ‘And David rendered judgment and righteousness (tzedakah) …’ [II Samuel 8:15] But whenever there is judgment there is no righteousness and wherever there is righteousness there is no judgment. What then is the judgment which has within it elements of righteousness. I would say this is compromise.” Babylonian Talmud, Tractate Sanhedrin 6b [Schottenstein Edition, Mesorah Publications 1993, 2002] After further discussion, the Amora Rav declares that Rabbi Yehoshua Ben Korchah’s opinion is the halacha, the controlling Jewish law. [Id.]
Full-blown litigation is a zero-sum game. There is a winner and a loser. The decision comes at great cost to the participants in time, money, uncertainty and stress. The decision is limited in most civil cases to an award of money to the winner or dismissal of a claim. Compromise and settlement offer disputants the option of controlling the outcome, flexibility of result and the possibility of reconciliation. Our sages recognized the advantage of compromise long ago.
Arizona’s courts have increasingly encouraged compromise and settlement. In 1991 Arizona adopted Rule 26.1 requiring early disclosure of the relevant facts, the theories behind the claims and defense, the names and addresses of the witnesses, and the documents a party anticipates may be used as trial exhibits. The rationale behind the new rule was that early revelation of a case’s details would encourage compromise and settlement before positions hardened and the very cost of litigation compelled the parties to try the case at great cost to themselves and the judicial system. Some years later, Rule 16(g) of the Civil Rules of Procedure was amended to require the parties to confer about alternatives to litigation for resolving their dispute such as arbitration or mediation. The court system provided judges, often volunteers, to conduct settlement conferences to mediate and resolve cases short of trial.
Mediation is a form of facilitated negotiation. A neutral, often retired judge or attorney helps the parties offering guidance on the strengths and weaknesses of their respective positions. Like the judge of the Jewish court he arbitrates a compromise. Often this compromise includes non-monetary elements like an apology from a doctor accused of malpractice, or former opponents agreeing to a creative business solution that unlike the zero-sum game of litigation is a win-win.
We are approaching Rosh Hashanah, which our liturgy calls “Yom Ha-Din,” the day of judgment, when G-d decides who will live and who will die in the coming year. But are we not told that arbitrating a compromise is meritorious? Can we arbitrate a compromise with G-d?
We are also told that G-d can forgive our sins against Him, but not sins we commit against our fellow man. For those, we must seek out the person we have wronged and ask their forgiveness. In litigation that request might be seen as an admission of guilt; in the confidential context of mediation, asking for forgiveness often breaks a logjam of distrust.
In the Unataneh Tokef prayer recited during the Musaf service of Rosh Hashanah, we are told that tefillah (prayer), tzedekah (charity but also translated as righteousness) and teshuvah (repentance) avert the severe decree. Through these we hope to be forgiven, that G-d will not render the strict judgment we may deserve but show us the mercy that is more than we deserve; that our tefillah, like a good mediator, will help achieve compromise; that tzedekah, like the judgment rendered by David permeated with tzedakah, will soften the harsh decree; and that teshuvah, a return to our Source and our amends to our fellow man and asking for their forgiveness, will reconcile us with G-d and them. These can serve as our own successful and creative mediation agreement on the path to a year of health, happiness and spiritual growth. L’Shanah Tovah.
David Goldstein is an experienced mediator, litigator and transactional attorney, concentrat- ing his practice on commercial litigation and bankruptcy, copyright, trademark, computer law, creditors’ rights, estate planning and business transactions. Mr. Goldstein earned his J.D. from Harvard Law School and is a founding partner of Hymson Goldstein & Pantiliat, PLLC, in Scottsdale Arizona.
