The Art of Compromise

‘It’s a matter of principle’ or ‘I’m right and you’re wrong’ are conversation stoppers that frustrate efforts to resolve a dispute between opposing parties.

Worse yet is an ad hominem attack on the proponent of a position. Once one party to a dispute demonizes the other, it becomes extremely hard to conclude any negotiated resolution of a matter. Similarly, labeling a position advanced as somehow less than virtuous also presents an obstacle to settlement. These formulations suggest winning at all costs is the only alternative and that perforce there must be a loser. Is compromise then an anathema?

It’s not often that this kind of a genuinely obstructionist attitude is encountered in daily business life. Most successful business people are able to see past the posturing and focus on dollars and cents, as a medium of exchange, for addressing many purportedly insurmountable problems. I’ll never forget the scene of a particularly peeved day-to-day operating partner addressing the controlling investor partner in the business. The operator made an emotionally charged presentation about how unfairly he had been treated by the investor given his overwhelming, but seemingly underappreciated, contribution to the success of the venture.

The investor listened attentively and did not interrupt the operator during his entire approximately fifteen minute soliloquy and poignant peroration. In response, the investor paused a moment and then softly and forthrightly asked, ‘OK, how much?’ The matter was promptly settled without rancor. Somehow each party was able to see past the unhelpful expressions of absolutes and set about the constructive process of achieving a workable compromise. It was not what each party initially demanded, but the result was acceptable to both.

Would that many of the world’s problems could be settled this way, without pyrotechnical displays, resentment or worse. Of course, not every problem can be solved with a monetary compromise. Some, like matters of life or death are not susceptible to this kind of a solution. However, so many could be resolved by compromise and benefit from a toned down, less rancorous, approach. Yet, it appears so much of the contemporary discourse and debate of issues of common concern are needlessly clothed in emotionally charged and inappropriately negative rhetoric.

Isn’t this the very situation we are facing today in discussing such important matters as border security and immigration reform? Public opinion is divided on the matter and it appears each side casts the other as somehow evil for advancing their heartfelt beliefs. If one side wins then the other will likely be profoundly unhappy and also resentful. Why alienate so many people if there is another way to resolve the dispute? It almost feels like a self-induced nightmare.

The compromise resolution is obvious to so many and would likely please the overwhelming majority of the people. Yet, the public discourse is dominated by those espousing extreme positions and demonizing each other. The rhetoric is also not limited to the issues at hand. All sorts of demons are being released, in the heated diatribes. As is often the case when this occurs, the Jewish people are not immune and ant-Semitism rears its ugly head.

The conflict is most unsettling and trust and confidence in our most sacred institutions of government is being undermined. If history has taught us anything, it’s that unrestrained conflict can quickly escalate and set in motion a cascade of events that cause all sorts of unintended consequences. I can’t help but wonder if this is not a part of the insidious goals of many of the extremists asserting these untenable positions.

Wouldn’t it be more useful to state the positions more rationally, such as this is what you want and this is what I want, without casting aspersions? This would permit mediation and a creative solution to be found that might yield a negotiated result acceptable to the parties. Shouldn’t mediation and compromise be the dispute resolution methodology of choice? Why not permit a so-called win/win solution?

The Talmud[i] stresses the advisability of compromise over insisting on strict justice. It notes that the goals of rendering strict justice and promoting genuine peace are often mutually exclusive. Mediation and compromise offer the possibility of combining justice and true peace, because both sides are satisfied with the results. It also enables a person to achieve a more charitable result than strictly enforcing a judgment.

Thus, when a Beit Din[ii] is first convened to hear a dispute, it is required to offer the litigants the opportunity for mediation, before proceeding with the matter on the basis of strict justice[iii]. However, once the Beit Din hears the case and has already formulated a conclusion, there can no longer be a mediated result. It cannot evade the responsibility to render the judgment once it is determined.

The Talmud[iv] views those who elect to pursue mediation, instead of insisting on strict justice, as particularly virtuous. This kind of noble action is sometimes referred to as going beyond the letter of the law. It reports that Rav Yochanan said, Jerusalem would not have been destroyed if it had not been for those who demanded strict justice and did not go beyond the letter of the law. Their unwillingness to forgo strict justices resulted in the baseless hatred[v], which is stated elsewhere to be the root cause of the destruction of the Second Temple in Jerusalem[vi].

It appears that Moses also faced a crisis arising out of seemingly unending conflicts among the people[vii]. It is not clear from the Biblical text what were the underlying claims in dispute; but it appears the problem was pervasive. Some attribute the spate of litigation to disputes about the division of the spoils derived from the recent battle[viii] with the Amalikites[ix] or claims by the formerly Egyptian mixed multitude relating to the bounty received by the people of Israel in the Egyptian Exodus[x]. Whatever the precipitating cause, apparently, the recently freed people of Israel were experiencing conflicts that required resolution. Considering the circumstances and the diversity of the group, this could hardly be unexpected. Some had endured the harsh reality of being slave laborers and others had a different experience[xi]. There were those who had herds of cattle and others with only the gifts their erstwhile Egyptian masters bestowed upon them as they left Egypt, in the miraculous Exodus. There were also a mixed multitude of others, who accompanied the Jewish people, as a part of the Exodus from Egypt, who had their own agenda.

Moses was faced with the challenge of how to meld this collection of individuals, with differing life experiences and views, into a new nation. The outbreak of discord among so many of the people threatened to jeopardize achieving this important goal. Amazingly, the Jewish people did come together, under Moses’ leadership, because they would shortly approach the impending revelation at Mount Sinai like one person with one heart[xii]. What was the secret of his success?

The Bible sets the scene with the appearance of Moses’ father-in-law, Jethro. He witnessed Moses constantly engrossed in judging the overwhelming number of disputes among the people. He was busy from morning until night, with long lines of litigants waiting to assert their claims. Jethro concluded that this crushing process was having a negative effect not only on Moses, but also on the people. He couldn’t contain himself and like all good fathers-in-law, he offered Moses advice on how to deal with the problem.

Jethro’s suggested solution is most interesting. He proposed Moses set up a system of judges, who would handle the small matters and the large cases would be reserved for Moses. He offered that Moses should see to it that the judges were capable and accomplished, G-d fearing and trustworthy and also despised dishonest gain.

It would appear Moses heard Jethro’s advice, but did not actually follow it. Instead, he set up a system that was devoted to mediation and arbitration in place of strict justice[xiii]. Jethro’s judicial system and the type of judges he recommended would only have intensified the discord among the people. Moses selected capable people of accomplishment and this was his primary criterion for appointment[xiv]. He wanted judges, with life experience, genuine wisdom and discernment; who understood business and human nature; and knew how to get things done[xv]. This meant the proven ability to overcome challenges, foster shared visions and teamwork, build relationships and establish peace among competing interests[xvi]. The alternative dispute resolution system in combination with judges, who were so capable and accomplished, was dynamic. It appears not only was the problem solved, but the people also came together as a nation.

The secret was not to insist on strict justice and winners and losers; it was to compromise. The result was a win/win situation.

Let’s all strive to apply this important lesson in practice. The result can transform our own society as well. Compromise; and instead of one side being happy and the other resentful, make many people happy and at peace. Let the blessings of peace prevail.

[i] Babylonian Talmud, Tractate Sanhedrin, at page 6b.

[ii] Jewish Court of Law.

[iii] Ibid. See also Maimonides, Mishne Torah, Laws of Sanhedrin and Penalties within their Jurisdiction 22:4 and Tur, Choshen Mishpat, 12:2-5, as well as, the Shulchan Aruch, Choshen Mishpat 12:2.

[iv] Babylonian Talmud, Tractate Bava Metzia, at page 30b.

[v] Ibid, Tosafot.

[vi] Babylonian Talmud, Tractate Yoma, at page 9b.

[vii] Exodus, Chapter 18.

[viii] Rabbi Yaakov Meidan, in his article, titled ‘Eifo V’Eifo…’, in Megadim 17 (1992), at pages 79-80.

[ix] Exodus 17:13.

[x] See Sechel Tov, Exodus 18:13 and Lekach Tov, Exodus 18:13.

[xi] Midrash Rabbah, Exodus 14:3, as well as, Meshech Chochma, Parshat Vayera 8 and Jerusalem Talmud, Tractate Rosh Hashana 3:5, at page 17a.

[xii] See Mechilta D’Rabbi Yishmael 19:2 and Rashi commentary on Exodus 19:2. See also Exodus 19:8.

[xiii] See Netziv, in his Harchav Davar commentary on Exodus 18:23.

[xiv] Cf. Nachmanides commentary on Exodus 18:21 and Ibn Caspi commentary on Exodus 18:25, who note the term ‘Anshe Chayil’ is inclusive of all the other detailed characteristics Jethro specified.

[xv] See Rabbi Samson Raphael Hirsch commentary on Exodus 18:21.

[xvi] It’s interesting to note, that the term Beitzah, used by Jethro in Exodus 18:21, in the phrase hate Beitzah, is interpreted to mean hate dishonest gain. Rabbi Samson Raphael Hirsch strains to define the term by comparing it to petzah, which means to wound. In my humble opinion, the use of this particular word might also be a play- on-words. Thus, the Talmud (Tractate Sanhedrin at page 6a) uses the term Bitzuah, as a synonym for Peshara, meaning mediation and compromise. Under this construct, Moses chose judges who, notwithstanding the advice of Jethro, didn’t hate mediation and compromise; but rather embraced it.

About the Author
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and other fine publications.
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