When two litigants come before the court, what is the best approach? Should the judges insist on hearing the case and deciding it based on the straightforward reading of the law, or should they offer arbitration and try to reach some level of agreement and accommodation?
This question is debated in a baraita that is brought on today’s daf.
The baraita opens by teaching that just as an ordinary court decision is made by three judges, so mediation also must be done by three judges. Once a decision has been made, however, the judges can no longer offer a compromise.
Rabbi Eliezer, the son of Rabbi Yosei HaGelili, argues that under all circumstances it is forbidden to mediate a dispute, and mediating is the equivalent of sinning. He understands the passage in Devarim (1:17) ki ha-mishpat le-elokim hu – to mean that the rendering of justice is a religious obligation, and any attempt to circumvent that is an evil act.
Rabbi Yehoshua ben Korḥa rules that it is a mitzva to mediate a dispute. Quoting the passage in Zekharya (8:16) that teaches “Execute the judgment of truth and peace in your gates” he asks how judgment and peace can be done together. He sees these two values as ones that will contradict each other when placed together in a courtroom. Rather, he suggests, judgment and peace can be reconciled by means of mediation that is fair and leaves both sides feeling satisfied.
It is interesting to note that two different terms are used for mediation in this Gemara. Rabbi Meir who objects to the idea of mediation calls it bitzu’a, while the Ḥakhamim who are open to the use of mediation call it peshara. While peshara simply means a compromise (like the Hebrew word for lukewarm water – mayim poshrim), bitzu’a carries with it negative connotations. The Ramah suggests that its source is the word betza meaning “dishonest gain” since Rabbi Meir views the idea of bitzu’a as taking money that truly belongs to one party and forcing him to share it with the other party. According to the Rosh the word bitzu’a means to break, which indicates something that should be avoided.