A Proposal for P'sharah: A
Jewish Mediation/Arbitration
Service
Ira Yitzchak Kasdan

According to all opinions, p'sharah/bitzua is certainly acceptable. if not preferable, at least before disputants approach a Beit Din for a strict din proceeding²⁶ Indeed, the Shulchan Aruch rules that even a Beit Din must ask litigants whether they wish to proceed in p'sharah or in din before commencement of the latter process. ²⁷ The Aruch HaShulchan further rules that it is a mitzvah for the judges to encourage the parties to proceed on the basis of p'sharah rather than din. ²⁸

Today, those litigants who choose to go to Beit Din generally agree to accept a decision of the judges termed "p'sharah karov l' din" ²⁹ or "din k'ein p'sharah," i.e., a compromise judgment for which the judges need not adhere absolutely or strictly to the law. ³⁰ To the extent, however, that disputants do not bring their cases to Beit Din, they obviously are not afforded -- and probably are not even aware of -- the options of p'sharah or p'sharah karov l' din under Beit Din auspices. Unfortunately, even when apprised of these alternative proceedings before a Beit Din, some otherwise Torah-abiding Jews simply refuse, for whatever reasons, to become involved with a Rabbinic, judicial or quasi-judicial panel. For these individuals who otherwise will turn to secular courts, the question arises whether arbitration or mediation proceedings outside the jurisdiction of a formal Beit Din, e.g., before Jewish or non-Jewish attorneys and other professionals acting as arbitrators/mediators, is permissible.

While non-Jewish arbitration or mediation panels may be halachically acceptable, ³¹ it would be preferable, where possible, to have parties voluntarily appear before fellow, from Jews. First, keeping squabbles "within the family" would help reduce the potential for Chilul Hashem. Second, a mediation or arbitration over which an halachically-knowledgeable lawyer or other professional presides can consider not only common law and statutory customs and principles, but also principles of Choshen Mishpat and the spirit of "yashrut." ³² So long as the litigants voluntarily agree to have their case mediated or arbitrated on these bases, there should be no halachic objection to these forms of p'sharah or bitzua. ³³ In this regard, Rav Eliezer Yehudah Waldenberg has ruled it permissible for neighbors in a shared housing or condominium-type facility to have disputes decided without any reference to Torah law. ³⁴ Rav Waldenberg relied, in part, on sources cited by R. Akivah Eiger ³⁵ that permit businessmen to have their arguments resolved on the basis of their industry-accepted practices and customs -- again without reliance upon the laws of the Torah.³⁶

There is strong precedent for the conduct of p'sharah outside the jurisdiction of Beit Din. The first and foremost arbitrator/mediator was Aharon HaCohen. The Gemara in Sanhedrin extols Aharon as one who "loved peace and pursued peace and made peace between man and man.... " ³⁷ Tosafot in Sanhedrin ³⁸ notes specifically that Aharon fulfilled p'sharah in his individual capacity, in contrast to his brother. Moshe Rabbeinu, who applied strict din in his capacity as a dayan (judge). Similarly, R. Yoel Sirkus, the Bach. ³⁹ speaks of p'sharah conducted by "baalei batim" -- lay individuals who are not part of a formal Beit Din. According to the Bach, the decisions or sugestions of the baalei batim become binding through a kinyan, as discussed above. Finally, R. Shlomo Ganzfried in his Kitzur Shulchan Aruch ⁴⁰ upholds the validity of a p'sharah proceeding separate from Beit Din:

A Jewish mediation/arbitration service staffed by Torah-abiding attorneys, with access to competent Rabbinic authorities for consultation where necessary, can act as a modern-day Aharon in the pursuit of shalom. Such a service could afford Jewish disputants who, for whatever reasons, are unwilling to appear before a Beit Din, the opportunity to have their cases settled or decided in a more private, speedy and cost-effective manner than courtroom litigation. More importantly, such a service would enable both lawyers and their clients to avoid the potential of transgressing the prohibition against litigation in Arkaot, and attendant problems of Chilul Hashem and, possibly, g'zelah.

Cases brought to the service, by advance agreement, would be settled in mediation or decided in arbitration by reference to Torah law, secular customs and practices based upon common and statutory law, and by taking into account general notions of fairness and equity and yashrut Also by advance agreement, the fees and costs could be allocated by the mediator(s)/arbitrator(s), or shared equally by the parties. ⁴¹ The parties could represent themselves or, if they preferred, be accompanied and represented by their own attorneys. Finally, the parties would also agree not to appeal the results of the mediation or arbitration to court, and to have the arbitrator(s)/mediator(s) retain jurisdiction to ensure compliance.

This writer was recently involved in mediations involving religious Jews. In each case, with the aid of the mediator, the parties came to appreciate some of the strengths and, more importantly, the weaknesses in their respective positions. They thus were able to gauge their probability of success (or lack thereof) in subsequent court action or arbitration. They also came to recognize the potential, enormous outlay in time and expense that further proceedings of any kind would engender. As a result, in each case, the parties negotiated an amicable settlement through the mediator who conducted "shuttle diplomacy" between them. Although mediation will not resolve every conceivable dispute, in these cases the disputants left the process wiser (and wealthier) for having made the good faith efforts they did to avoid litigation.

In this time of overuse and misuse - halachically and otherwise - of the courts, it is time for a Jewish mediation/arbitration service.