Shaya Cohen -


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 Inquistor. 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 judgement based on divinely-delivered legal principles. Ultimately, judgment from Moses (or the top court of the land) was unappealable, 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.

Comments are welcome!

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