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Mediation Lessons From the Talmud: Is Mediation of Disputes a Moral Duty or a Utilitarian Exercise?

Mediation and peaceIn this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy).

Moral duties are actions we are not legally obligated to perform, but still feel obliged to undertake out of a sense of benevolence, justice or equity. An example is charity. No law compels us to contribute time or money to worthy causes. Yet we still feel a moral responsibility to assist those less fortunate than ourselves.

Many Talmudic era sources describe mediation of disputes as a moral duty. This approach is rooted in the Book of Psalms (34:15), which declares, “seek peace and pursue it.” Paraphrasing this verse, one Talmudic sage, Hillel, urged his students to act like “the disciples of Aaron, loving peace and pursuing peace.” According to tradition, the biblical figure Aaron was a mediator who was famous for his ability to amicably resolve disputes. In fact, it is for this reason, the Sages maintain, that the nation of Israel mourned Aaron more intensely after his death than they mourned Moses after his passing. Because Moses served as a judge, there was always a winner and a loser after he adjudicated a dispute (and the loser could not help but feel some resentment at the outcome even though he or she fully accepted Moses’s authority). In contrast, after Aaron mediated a dispute, both parties felt at least partially vindicated even if neither achieved their optimal result.

Hillel was far from the only sage to advocate the active pursuit of peace. The story is told of another sage, Rabbi Meir, who was willing to endure humiliation to reconcile spouses who had been fighting. A different sage asserted that making peace between adversaries is as meritorious as acts of kindness such as visiting the sick and providing hospitality to guests.

Similarly, preventing discord from developing in the first place was also extolled to the extent that it trumped competing values. For example, many Talmudic sages ruled that it is permissible to deviate from the truth for the purpose of preserving peace between spouses or between other family members.

The underlying rationale for Talmud’s elevation of mediation to a moral duty is not immediately apparent. A clue emerges from another Talmudic statement asserting that there is no greater source of prosperity than peace.

That statement — which constitutes the final paragraph of the entire Talmud — suggests that the Talmudic sages looked beyond the narrow confines of individual disputes at the “bigger picture,” and concluded that the wrecked relationships that often result from disputes that end up in litigation pose a systemic risk to society’s welfare. In other words, the fabric of society is strengthened when the incidence of relationship-destroying disputes is minimized through mediation, and this goal justifies sacrificing other values to promote peace.

The Talmud’s view of mediation as a moral duty contrasts with that of the American legal system, which sees mediation in more utilitarian terms. As Professor, lawyer and mediator James Stark writes in his article entitled The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer Mediator (in the 1997 issue of the South Texas Law Review):

helping parties resolve their disputes and assisting in unclogging crowded court dockets are positive goals. But I am unaware of any mediator ethics code that considers them ethical goals. (emphasis added).

The distinction between the Talmudic and American legal views of mediation is not merely of academic interest, but has practical significance in the real world.

As an example, let’s review the hypothetical in Stark’s article involving two unrepresented parties embroiled in a landlord tenant dispute over the return of a small security deposit. The central question Stark asks is how far the mediators in the hypothetical should go in advising each of the parties about the strengths and weaknesses of their respective positions.

Readers can access Stark’s article at the link above to read the entire hypothetical. For purposes of this blog post, we’ll simplify matters by applying the two different views of mediation described above to one aspect of the fictional dispute.

Briefly, after the tenant ended her lease, the landlord deducted $450 from her $900 security to replace tile that he alleges she ruined by allowing frequent water overflow when the tub or shower was used. The tenant claims that the tile was in poor shape when she moved into the apartment a year earlier (which the landlord denies), and that additional damage, if any, is “ordinary wear and tear” for which she is not legally responsible. The landlord has a receipt evidencing replacement of the tile, but neither party has any photographs of the tile before and after the repair. Nor are there any corroborating witnesses for either side.

A hearing before a judge has already been scheduled, but the parties have agreed to try mediation. After a lengthy joint session with the mediators, the landlord has agreed to refund $100 to the tenant, but the tenant refuses to accept anything less than the full $450. The mediators have decided to caucus with the tenant.

Critically, neither party is aware that there is a statute imposing double damages on landlords who fail to return security deposits to tenants within thirty days of receiving written notice of a forwarding address. Thus, if a court finds that the landlord wrongly withheld the tenant’s security deposit, he could be liable for double damages.

The mediators are familiar with this statute. The question that Stark poses is whether, under an evaluative approach, the mediators should disclose the existence of this statute to the tenant, the landlord, both of them, or neither of them.

Stark observes that advising the tenant of this statute (so she can request double damages if the matter ends up before a judge) likely constitutes the sort of “representational” advice that a lawyer would provide to a client. It might thus violate the principle of impartiality by informing the tenant of a litigation advantage she did not know she possessed. Further, if the goal of mediation is to resolve disputes, advising the tenant of her right to double damages if she prevails in court would only stiffen her resistance to compromise.

On the other hand, advising the landlord of the statue would make him aware that he faces greater risk going before a judge than he realized. This awareness might persuade him to sweeten his initial offer to the tenant, which might suffice to resolve the dispute.

In assessing the dilemma, Stark identifies three conflicting goals in evaluative mediation: “promoting conflict reduction and settlement, avoiding conduct that favors one side over the other, and fostering party empowerment through informed consent.”

Reconciling these goals, Stark concludes that the mediators should advise both parties about the double damages statute. He acknowledges that this may “decrease the chances of settlement,” but as noted above, Stark does not see mediation of disputes as an ethical goal. Instead, he argues that the primary purpose of evaluative mediation where both participants are unrepresented is party self-determination through informed consent, and that this purpose trumps competing considerations.

That short summary does not do justice to Stark’s thorough and thoughtful analysis. But it seems clear that to the extent one attributes a moral value to mediation, one would reach a different conclusion. Specifically, if we embrace the Talmudic view that mediation of disputes is a moral duty (with the overriding goal of preserving amicable relationships for the overall benefit of society), then the mediator’s primary allegiance is to making peace, which would then trump the other competing values that Stark identifies.

One can analogize to a lawyer for a corporation. Although there may be senior executives who view the corporation’s attorney as also representing them individually, when push comes to shove, the attorney’s allegiance is to the corporation. Consequently, if a conflict develops between the corporation and any of the corporation’s employees, the attorney must advise the relevant employee to seek independent counsel.

Similarly, if there is a moral duty to mediate disputes to restore peace between feuding parties (in order to preserve their relationships and thereby benefit society), then the mediator’s allegiance is to resolution of the dispute. In turn, this approach may justify some of the incomplete disclosure of legal rights that troubles Stark if such nondisclosure increases the likelihood of settlement. For example, in the hypothetical, it would be justifiable for the mediator to disclose the risk of the double damages statute to the landlord to increase the likelihood of settlement (but not disclose the double damages statute to the tenant, which would decrease the likelihood of settlement; of course, the tenant can hardly complain since the disclosure to the landlord will weaken his resolve).

Of course, the analysis would be entirely different in a case where both mediation participants are represented by counsel.

Interestingly, in his conclusion, Stark expresses some reservations as to whether his proposed reconciliation is workable in practice, and whether he would have the courage to follow the principles he laid out in future evaluative mediations.

This surprising conclusion only highlights how tough these issues are. But they are certainly issues worth examining. One need only look at the increased divisiveness within American society to appreciate that how we resolve disputes can influence the course of our nation.

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