1 Two articles on the Internet form the basis of my notes: The Role of Peshara within the Halakhic Judicial System: by Rav Moshe Taragin See http://www.jlaw.com/Articles/roleof.html

In general terms, Beit Din's role in deciding civil suits entails gathering evidence and issuing a definitive verdict. The gemara (Sanhedrin 6a-7a) however, addresses an alternative - the legal option known as peshara, whereby Beit Din brokers a compromise or settlement between the litigants. Taragin says that most opinions in the gemara reflect this as the preferable option, viewing peshara more favourably and citing it as the highest form of 'justice': one which settles disputes while engendering peace and goodwill between the two parties.

What is the method of implementing peshara? Must the judges investigate the case, scrutinise the evidence, and formulate some form of adjusted compromise based upon the particular facts of this dispute; or does peshara entail a simple equitable division which awards payment to both parties - a general adjustment which bears no resemblance to the specific facts? If peshara is a form of 'din' or justice, we might expect it to be patterned after 'din' and it would require some degree of deliberation and consideration of the testimony. If, however, peshara is an extralegal form of arbitration we would certainly not demand that it be patterned after the model of classic 'din' and in the interests of pursuing harmony we might prefer that it take the shape of a general mediated compromise.

The authority Tosafot haRosh maintains that both forms of peshara exist. In effect, Halakha affords two models of peshara - one akin to 'din' which entails some attempt to base the compromise upon the facts, and another distinct form which strikes a general compromise acceptable to all even if it in no way mirrors the facts.

The gemara asserts that once 'gemar din' - a verdict - has been rendered, peshara cannot be introduced. This is possibly because peshara ITSELF represents a halakhic verdict; once the verdict is rendered a second verdict cannot be pursued (see the Bach Choshen Mishpat 12 - who clarifies this concern of not issuing successive verdicts). If however we viewed peshara as merely an extralegal and mutual agreement to compromise and to waive the respective claims, one might wonder whether the very fact that a formal verdict were issued would preclude an attempt to pursue a compromise of this nature.

A final issue for consideration is the gemara's deliberation (6a) as to whether peshara must be executed by performing a kinyan sudar (handkerchief exchange). Clearly if peshara is a form of court rendered justice it would be difficult to justify the need for a kinyan. If however peshara is a court brokered compromise hammered out between the two parties we would comprehend the role of a kinyan. This mutual compromise entails reciprocal waiving of claims (each feels that he is 100% correct and deserves the full amount; by agreeing to compromise they are effectively waiving '50%' of their claim). Such a waiver - known in halakha as 'mechila' - constitutes a halakhic transaction which, like other transactions of property or value, requires a kinyan. Ultimately, the gemara's questioning whether peshara requires a kinyan might in fact be the gemara's questioning whether peshara is a pseudo form of justice or a court mediated compromise between individual citizens.

2. A Proposal for P'sharah: A Jewish Mediation/Arbitration Service: by Ira Yitzchak Kasdan (“Kasdan”)

(An article at Jewish Law Articles: see http://www.jlaw.com/Articles/psharah1.html)

Halacha generally prohibits a Jew from initiating legal action against a fellow Jew in a court other than a Beit Din. Despite this Torah-based prohibition, religious Jews, like others in today's litigious society, turn to the civil courts to resolve disputes in which they become embroiled. 2

There are a number of possible reasons for this. One of these concerns the inability of Beit Din to enforce its own decrees. Another is the concern putative litigants have regarding what substantive law applies. Jewish law does not always coincide with the statutory or common law.

Kasdan writes that for the party who, for whatever reasons, refuses to turn to a Beit Din, two alternatives exist which are halachically viable and practicable: mediation and arbitration. He says that these two methods of alternative dispute resolution are well-founded in Halacha in the form of "p'sharah" or "bitzua" and can be tailor-made to serve the needs of Jewish litigants. The terms p'sharah and bitzua are used interchangeably by the Talmud in the first chapter of Massechet Sanhedrin and apparently refer both to arbitration and mediation processes.

Because p'sharah is not comparable to din, the Shulchan Aruch, requires parties submitting to p'sharah to pledge themselves, through kinyan, to adhere to the award rendered. Rashi in Sanhedrin opines, and the Shulchan Aruch concurs, that a kinyan is necessary for enforcement of the award even. 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 after-event, 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.

While judges may not, after rendition of the strict law, impose a settlement, they may encourage voluntary conciliation, i.e., mediation, in the form of p'sharah. Indeed, not only is it "worthy" for the judges to do so through assuagement and persuasion, it is a "great mitzvah." because voluntary conciliation brings "shalom" -- harmony - between opposing litigants.

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 proceeding. 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. It is a mitzvah for the judges to encourage the parties to proceed on the basis of p'sharah rather than din

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" or "din k'ein p'sharah," i.e., a compromise judgment for which the judges need not adhere absolutely or strictly to the law.

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.... " Tosafot in Sanhedrin 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 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 upholds the validity of a p'sharah proceeding separate from Beit Din.

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