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

Arbitration is the voluntary reference by disputants of their disagreement to one or more (typically, three) impartial individuals who, after a hearing at which evidence and argument are presented, render a binding decision called an award. Although the arbitration proceeding is private and less formal than litigation in a court of law -- e.g., discovery is circumscribed and strict evidentiary rules are not applied -- it is governed by rules and procedures to which the parties have agreed in advance. At times, these rules and procedures are standardized, such as when the parties agree to arbitrate in accordance with the rules of an arbitral organization like the American Arbitration Association. In other instances, the procedures governing the arbitration are formulated, negotiated and agreed upon separately by the parties and their attorneys.

In addition, state and federal statutes provide guidance on the conduct of arbitrations to ensure fairness in the process. ¹² Arbitration awards may be appealable under various statutes, but the grounds for court review are narrow. Generally, a court will not vacate an arbitrator's decision unless presented with evidence that the arbitration proceeding was tainted by fraud or bias, or that the arbitrators exceeded their powers ¹³ in a manner which results in a manifest disregard of the law.

Mediation

Mediation is a dispute resolution method by which an outsider helps persuade parties to settle their differences voluntarily. Unlike arbitration, no decision is rendered in mediation. Any suggestions the mediator makes for resolving the dispute are not binding upon the parties.

The modus operandi of the mediator is not prescribed. He may preside over face-to-face meetings between parties, caucus with each side separately, or (and most likely) use both of these approaches freely and interchangeably. The mediator listens to the parties' real or imagined grievances and seeks to gain understanding of their respective positions. He attempts to define the issues and areas of dispute, and determine what common ground, if any, the parties may share.

The mediator is available to the parties as an objective, "sounding board" to offer an impartial evaluation of the merits of their case. In this regard, the parties can choose to share confidences with the mediator, who, without prior consent, will not divulge such information to others. Conversely, the mediator can serve as a conduit through which the two sides can exchange information or settlement proposals. In the end, the mediator resorts to his skills to find creative compromise solutions which are palatable to the antagonists. If acceptable, the mediator's proposals are finalized in a written, enforceable agreement which the parties execute.

P'sharah and Bitzua

The terms p'sharah and bitzua are used interchangeably by the Talmud in the first chapter of Massechet Sanhedrin and, as explained below, apparently refer both to arbitration and mediation processes.

The Talmud reports a dispute between Rabbi Meir and Chachamim as to the number ofindividuals needed to preside over p'sharah and bitzua.¹⁴

The continuation of the Gemara focuses upon the respective rationales of R. Meir and the Chachamim and concludes that their argument is based on whether p'sharah/bitzua can be compared to "din," formal court proceedings:¹⁵

Because p'sharah is not comparable to din, the Shulchan Aruch,¹⁸ in accordance with the continuation of the Gemara in Sanhedrin, ¹⁹ requires parties submitting to p'sharah to pledge themselves, through kinyan, to adhere to the award rendered. Rashi in Sanhedrin opines, ²⁰ and the Shulchan Aruch concurs, ²¹ that a kinyan is necessary for enforcement of the award even where the p'sharah is conducted by three individuals, i.e., the number necessary for din.

Although, as noted above, the Soncino translation of both p'sharah and bitzua is "arbitration," whether those Talmudic terms refer to the present-day concepts of arbitration or mediation turns, in part, on the timing of the kinyan necessary for enforcement of the p'sharah/bitzua. If a kinyan is made in advance, thereby binding the parties to a decision, then p'sharah/bitzua is in this sense akin to arbitration. If a kinyan is required as an afterevent, then the p'sharah/bitzua is like non-binding mediation in which settlement of the dispute is made enforceable only by the subsequent agreement of the parties.

Tosafot in Sanhedrin ²² actually contemplates both circumstances: (i) A kinyan may be made by the parties at the outset to become bound by the judgment to be rendered at the conclusion of the p'sharah proceeding or (ii) a kinyan may be made by the parties after pronouncement of the p'sharah decision to fulfill otherwise non-binding terms.

That p'sharah and bitzua encompass not only an arbitration but also a mediation format is also clear fiom the explanation of the Shiltei Giborim ²³ to another statement in Sanhedrin:²⁴