Dovid Bressman, Los Angeles, California
MyLife Essay Contest 2018
I am a certified mediator. Mediation is also known as Alternative Dispute Resolution (ADR). I took an interest in this field a couple of years after I received ordination for Dayanus (Rabbinic Judicial ordination). I will address how one can overcome stark differences and discord when differences cannot be worked out between individuals. I call this method, “Chassidic transcendental mediation.” The tools to overcome discord are found in the Chassidic sources I will present. I will note that this article can benefit both an experienced mediator and a layman.
Before I provide the Chassidus approach to mediation I want to briefly describe mediation and its different methods used.
Mediation is a way to resolve disputes through a third neutral party who uses specialized communication and negotiation techniques.
Litigation is an adversary battle where both sides fight for their hoped results and the decision ultimately rests in the hands of (an) arbitrator(s). Mediation is a voluntary undertaking, an agreement by parties to participate in a non-adversarial, structured negotiation with a neutral facilitator. The mediator allows both sides to clearly articulate their case and interests and tries to refocus the dispute on a problem solving opportunity.
Methods of Mediation
There are in general three classical styles of mediations practiced today.
Facilitative Mediation – This approach is to have the neutral third party mediator facilitate between the two parties, but ultimately the mediator will rely on allowing the participants to reach a durable agreement based on their own ideas and terms.
Evaluative Mediation – This approach is where the mediator makes an evaluation of the legalities of the dispute and what would likely happen through arbitration. He explains to the parties why it is in their respective best interests to settle and “get it done.” This practice is also called by as “Med-Arb” (a mix of mediation and arbitration). Often this approach is done by individuals such as lawyers or retired judges with an extensive legal background.
Toolbox Mediation – This method is where the mediator comes in with an open mind, no preconceived notions and does not develop a plan of how to mediate until he has seen the nature of the dispute. The mediator will employ many “out of the box” ideas to make a settlement.
All of these approaches come to fix a problem or “patch up a hole”. Certain methods have advantages, but even though an agreement can be reached, however, the hole still exists. In other words, the argument can be settled, but the discord still exists and even with (legal) boundaries strongly placed, the core of the argument still remains.
At first I tried to use techniques I acquired through my study of Dayanus to aide in overcoming barriers that cannot be solved through classic mediation techniques. Those skills helped me to understand better the root of arguments and to create a rapport of healthy dialogue, enabling me to come to peaceful settlements. However, even this approach per se is based on patching a hole and the bitterness can still remain even after there is a peaceful settlement.
Mediation in Light of Chassidus
In Lekutei Sichos the Rebbe explains that the number “2” represents division, the opposite of unity, whereas the number “3” represents inclusiveness- that it unites the two into one entity.
An example of this phenomena is found in the Thirteen Principles of Torah Exegesis. There it says, “Two verses which are contradicting each other [we follow] the third verse which comes and “Machriah” solves (mediates) between them.” On one hand we find that the verses “contradict each other” and only when the third verse comes does it solve/mediate between the two verses to find common ground and inclusiveness.
Similarly, we find in the Talmud an axiom, “The Halacha (law) is like the words of “Hamachriah” the compromiser/mediator”. The meaning of the Machriah (mediator) is not an arbitrator who chooses the correct from amongst the two, rather he transcends both of them and includes both of the views to the extent that they agree with his view.
In footnote 29 of the Sicha, it references a discourse from the Rebbe Rashab. There it explains the spiritual qualities of a Machriah (compromiser). It explains why the halacha follows the mediator. By way of preference, we know that Yakov is the epitome of truth as it says “give truth to Yakov.” In Jewish sources, Yakov is likened to the attribute of Tiferes (beauty), which represents truth and is expressed by the attribute of Rachamim (mercy).
By way of example Chesed (kindness) is not absolute truth since it gives even to those who are not worthy. Gevurah (severity) is also not absolute truth since it does not find any merit in others. Tiferes is an attribute rooted in a higher source, which transcends both levels and in its greatness includes both of them together. The two opposing attributes then in turn can understand and agree. That is why the attribute of Tiferes represents Rachamim (mercy), which gives out of mercy and not out of entitlement.
This is why the Halacha (rendering of Jewish law) follows the mediator. A true mediator is not that he chooses the correct opinion amongst the two views, rather his great wisdom allows him to find truth in both sides and rules in a way that both sides see the truth in his words and they both will agree with him. Halacha needs to be absolute truth without a fraction of falsity.
The Rebbe in the sicha goes on to explain that also in Torah we find the idea that even when a Beis Din maintains different opinions amongst the judges, the ruling (which follows the majority) needs to be that it includes all of the opinions. Thus the minority view nullifies its view to the majority and becomes part of the majority. Indeed the code of Jewish law rules, that when a Beis Din of three issue a ruling, all three judges sign the verdict even the one with the view who differed with the other two judges.
All of this stems from the greatness of Torah, as the verse says, “The L-rd shall grant strength to His people; the L-rd shall bless His people with peace.” It is the strength of the Torah which reveals the peace and unity.
In a later talk from the Rebbe in 1991 the Rebbe explained a deep mystical topic on how is it possible that the Olam (world) which comes from the etymology of Helem (concealment) – to conceal over G-d, could unify with G-d as its Creator? The Rebbe answered it based on the rule of mediation, having a third entity which is way above both entities (in this case, the Torah) to find inclusiveness in both sides. The following is a free translation of a segment of the talk:
“It is brought in the expositions of our Sages that on the second day of the week quarrel was created, and on the third day the quarrel was resolved and peace was made.
And the concept of this in the Service of man:
The “quarrel” of the second day of the week is because of the concealment that the world ((Olam (world) an idiom of Helem (concealment)) has over G-dliness, since the state of “one day,” when “Hashem was One and only in His world,” is from the perspective of the Creator of the world (“Hashem is One and only in His world,”), however the (created) world from its perspective is in a state of “quarrel/division” (second/two); and the innovation of the third day – that the quarrel was resolved and peace was made between the world and G-dliness as such that the world also from its perspective “agrees” (so-to-say) to [have] G-dliness [which brings unity].
And this phenomenon is accomplished through the Service of the Jewish people in fulfilling the Torah – which both of them (the Jewish people and the Torah) are called “three,” “a triple instruction… for a triple nation,” third which mediates among the quarrelers, through the fact that “he includes the two opinions and both agree to the opinion of the mediator” – As the words of our Sages that the Jewish people are called “Shulamis, a nation that makes peace between Me and My world,” through their Service in fulfilling the Torah which “was given to make peace in the world.”
Thus, the Rebbe explains that Torah acts as a transcending higher force which reveals the unity within the division. In the above case, Torah shows how the world is not in contradiction to G-d as its Creator.
The job of a mediator according to chassidus is to transcend from a higher level where “he includes the two opinions and both agree to the opinion of the mediator.”
To apply the Chassidic concept of transcendental meditation one needs to present his or her arguments to a Torah figure who is well respected by both sides. The mediator needs to be patient and qualified in uncovering the ‘chaff from the cornels’; in other words to remove the insignificant differences which built up negative feelings between them. Only after the external negative feelings have been removed, which is almost always accomplished effectively by merely having the mediator sit in-between both sides, they can present solutions toward true piece.
I have found that both joint meetings and shared communications are an excellent way of reminding both sides that we are all on one common grounds for good interests, truth and peace.
Thus the mediator using transcendental mediation based on Chassidus must be able to show his or her understanding of both sides (which is vital for effectiveness) and also be able to understand and articulate the truth that lies within both sides. The mediator then needs to use his wisdom (which is based on Torah) to find the common grounds of agreement which is peaceful and absolute truth. This method of mediation can not only patch up holes from a ruined relationship like the other methods, but removes the holes altogether.
 See Shulchan Aruch (Choshen Mishpat 17:7) – a facilitator needs to repeat the claims of both parties’ to verify clarity as it says (Melachim 1 3:23) “And the king said, “This one says, ‘This (is) my son that lives, and your son (is) the dead, and the other says, ‘Not so, your son (is) the dead, and my son (is) the living.’ ”
See also Shulchan Aruch (Choshen Mishpat 75:1) – A facilitator must make each side clarify and depict their claims, asking them, “Why do you say that he is obligated? From a loan or from a deposit …”
 Vol. 21 p.111-112.
 Shabbos 39b at the end.
 Sefer Hamamarim 5666 p. 434-435.
 In the maamer there it explains that Chesed and Gevurah are rooted in Chitzonis of Keser (the external level of Kesser) whereas Tiferes is rooted from the Pnimious of Kesser (the inner level of Kesser).
 There is also a fascinating discussion on this topic found in Get Pashut (Klal 1) from Rabbi Moshe Chaviv.
 See Shulchan Aruch (Choshen Mishpat 19:2).
 Tehillim 29:11.
 See Sefer Hasichos 5752 vol. 1 p. 17-18.
 Hemshech 5666, pg. 435. And see Likkutei Sichos vol. 21, pg. 111 ff. Ref. a.l.
 Shir Hashirim Rabbah beg. ch. 7.
 Rambam, end of Hilchos Chanukah (and see Likkutei Sichos vol. 8, pg. 349).