Mediation is deeply rooted in Judaism under laws of compromise and justice known as p’shara. Aaron, brother of Moses, was called a pursuer of peace (rodef shalom) and is recognized as Judaism’s first mediator. Implicit in p’shara is the belief that much is to be gained by the one who exhausts the effort to settle a dispute out of court, including peace of mind and spiritual strength.
Mediation today is generally understood to mean a confidential session where a neutral party called ‘Mediator’ meets with parties to a dispute and their counsel (if represented) outside the litigation process. The mediator, who has no authority to make any ruling, is there to guide the parties to reach a settlement on their own and avoid the need for an imposed solution by a court or arbitrator.
Use of mediation in the United States and internationally, as the first step to settling disputes, is booming. For good reason. It works. Parties who use mediation invariably praise it for saving them time, expense, uncertainty and continued stress that accompanies litigation. Sometimes mediation even succeeds to repair broken relationships.
Many however still elect to resolve their disputes through protracted, expensive, and often painful litigation or arbitration without first having tried mediation. They are often not aware of the effectiveness and value of mediation.
Let’s say you and your significant-other have an important issue in dispute. You may seek the help of a counselor to help you work through the problem together. But, you don’t give the counselor power to make the decision for you. You want to play a role in determining your destiny, rather than be forced to submit to the will of an authority figure. When you take a dispute to a jury, judge or arbitrator that is exactly what you’re doing. You’re turning over your right to reach a decision on your own, giving it to a third party.
Assume your Doctor informs you that you have a critical medical problem. He offers two choices. You can first try medication, exercising and changing your diet, or you can skip that and assume the risk of going directly to the final option — surgery. Clearly, we would choose surgery only after the less drastic alternatives have been exhausted.
Resolving a dispute is not different. Just as medication should be tried before resorting to surgery, mediation should be tried before resorting to court or arbitration.
Therein lies perhaps the most overlooked benefit — control. In mediation, you retain absolute control over whether or not and how to resolve your dispute. In court or arbitration, parties submit to the decision of a third party. Given the option, most of us would choose to participate as fully as we can and save the more drastic measures as backup options.
A mediator deals with the strengths and weaknesses of positions, analyzes likelihood of outcomes in litigation or arbitration, and bridges the gap effectively given the dynamics of the case. With the help of a mediator, people can simply and very inexpensively, when compared to litigation or arbitration, resolve any dispute – in any area whatsoever including divorce and every variety of business, contract, personal injury, estate, civil rights, and real estate disputes, among others.
The standard California residential real estate contract form requires any arising dispute to first be mediated. Fortunately, as the benefits of mediation become more known, increasingly more contracts contain a clause requiring mediation before litigation or arbitration.
Torah declares “Justice, justice shall you pursue” (Deuteronomy 16:20). According to the Talmud, the first mention of justice refers to a decision based on strict law; the second, to a compromise. We are taught that in practically every case or controversy, mediation should be the first step to resolve it. Some lessons take a few thousand years to learn.
These lessons inform my practice as a mediator. After extensive experience as a trial lawyer, I have wholeheartedly embraced the task of being a rodef shalom — a mediator who wages peace.
This post is part of the 9 Adar project, an initiative of the Pardes Center for Judaism and Conflict Resolution, part of the Pardes Institute of Jewish Studies.