Not every problem needs to be taken to a formal court proceeding. Sometimes all that is needed is an opportunity for both parties to be recognized and heard so that they can move forward together. The Talmud calls this opportunity bitzua, literally: compromise. Today, we might think about it as mediation, not in the sense of large corporations dictating a process that shields them from legal liability but in the sense of bringing in a third party to mediate a situation in which all parties will have to compromise to resolve their issue.
Today’s daf begins to describe how talmudic mediation is meant to work:
The sages taught in a beraita: Just as judgment is by three judges, so mediation is by three. Once the judgment has been issued, it is not permitted for you to mediate.
For the anonymous rabbis of this beraita, mediation is a formal process requiring as many outside parties as judgment. It is meant as a true alternative, not as a way to “re-try” a case if one party is unhappy with the results.
Was mediation a good alternative, though? Not all rabbis agreed. The beraita continues, offering Rabbi Eliezer’s view:
Rabbi Eliezer, son of Rabbi Yosei HaGelili, says: It is prohibited to mediate; and anyone who mediates (habotze’a) is a sinner; and anyone who blesses the mediator is cursing God. And of this, it is stated: “And the covetous (botze’a) blesses himself, though he despises the Lord” (Psalms 10:3). Rather, the judgment will pierce the mountain, as it is stated: “For judgment is God’s” (Deuteronomy 1:17).
While we might think compromise is a powerful tool for resolving conflict, Rabbi Eliezer sees it as circumventing God’s clearly defined system of justice. If, as Rabbi Eliezer believes, God has laid out a clear system of courts and extensive criminal and civil laws that have clear penalties attached, who are we to try to get around it by coming up with our own solutions? Sinners, that’s who. On the other hand, the beraita continues:
Rabbi Yehoshua ben Korha says: It is a mitzvah to mediate, as it is stated: “Execute the judgment of truth and peace in your gates.” (Zechariah 8:16). Is it not that in the place where there is judgment there is no peace, and in a place where there is peace, there is no judgment? Rather, which is the judgment that has peace within it? You must say: This is mediation.
Rabbi Yehoshua notes that the entire function of having a system of courts is so individuals and communities have justice in the service of peace. If the losing party in a dispute feels resentful of a judgment, that doesn’t resolve the initial dispute, but only perpetuates a cycle of grievance. Mediation, therefore, serves a higher purpose than justice: peace.
It’s worth noting that Rabbi Yehoshua ben Korha agrees with Rabbi Eliezer that mediation is not true justice. Compromise means everyone gets a little and everyone loses a little, and those gains and losses may not match responsibility and deserts. But for him, the Torah’s prioritization of the “judgement of truth and peace” means that true justice is not always the goal. For Rabbi Yehoshua ben Korha, breaking a cycle of grievance might require us to move outside the system of strict justice and come to some kind of compromise with the help of mediators.
The Talmud doesn’t explicitly tell us which of these two early rabbis is correct. But given that the rest of the daf assumes that mediation is legal and a regular part of resolving disputes, it seems clear that the rabbinic community followed Rabbi Yehoshua ben Korha and not Rabbi Eliezer. When strict justice and peace cannot be achieved simultaneously, the Talmud privileges peace.
Read all of Sanhedrin 6 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 23, 2024. If you are interested in receiving the newsletter, sign up here.
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