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

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

Himmelfarb and Goldberg had been friends and sole shareholders in a large, successful real estate development company for ten years. As the regional economy where the company was based changed, the company began experiencing a downturn in business. With the decrease in profits came a deterioration in the relationship between the friends. Each accused the other of taking self-serving actions which allegedly were detrimental to the business as a whole. Before long, Himmelfarb claimed that Goldberg had misappropriated company funds. In turn, Goldberg accused Himmelfarb of breaching certain of his fiduciary duties. One thing led to another until the parties became embroiled in a lawsuit -- Himmelfarb having sued Goldberg for $500,000 and Goldberg having counterclaimed for $750,000.

Both Himmelfarb and Goldberg entered into the litigation convinced of the justice of their respective positions and certain of complete vindication in court. However, after countless depositions, subpoenas, document requests and interrogatories - all legitimate discovery tools - hundreds of thousands of dollars in legal fees, and seemingly interminable time dedicated to the case, the antagonists learned the painful and expensive lesson that there are two sides to a dispute. Like (an estimated) 95% of other parties in litigation, the erstwhile friends decided to settle without going to trial. They agreed to dissolve the business, split the remaining assets and drop the claims against each other without admitting culpability. They still remain angry with one another.

Himmelfarb and Goldberg were vaguely aware that according to Jewish law, Halacha, Jewish disputants were not supposed to resolve their differences in secular court, but rather in a Jewish court, a Beit Din. However, they mistakenly believed that the prohibition of Arkaot - litigation in secular court - did not apply to today's judicial system. In any event, they had rejected suggestions that a Beit Din adjudicate the dispute.

Had Himmelfarb and Goldberg heeded the advice of their lawyers who had forewarned them of the expensive and time-consuming nature of courtroom litigation, they might have decided not to sue each other. They might have opted for private, less costly and more expedient alternative dispute resolution proceedings such as mediation or arbitration -- forms of p'sharah discussed in Jewish law -- either of which could have been conducted in an halachically-acceptable manner. By choosing to litigate in a public forum, these disputants ended in a "no-win" situation which cost them dearly; both financially and emotionally.

The mistakes of our fictitious antagonists need not be repeated....

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