Understanding Israel’s Mediation in Conflict

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the development of mediation in Israel and argues that it can only be understood through the country’s culture, religion and legal traditions. After situating mediation within Alternative Dispute Resolution generally, the author describes the strong orientation toward the courts, the role of religious tribunals applying Jewish religious law, and the predominance of mediation in family matters. The article traces the short history of the field from the early 1970s and the influence of American practice, the amendment of the Courts Law in 1992 and the reforms associated with Supreme Court President Aharon Barak, and notes cultural elements of practice such as the ritual of preparing and drinking coffee in the mediation room. The author concludes that mediation in Israel remains closely tied to the judiciary and that integrating culture and national ownership would support more independent institutions.

KEYWORDS *

Israel, mediation, legal culture, religious tribunals, family mediation, Alternative Dispute Resolution, court annexed mediation, Aharon Barak, national ownership, ethnography of mediation

INTRODUCTION

In order to understand Israel’s conflict in mediation processes, one must consider Israel’s culture, norms, and values. This article is a comprehensive examination and insight into the history, life, culture, religion, and practices of the people of Israel and outlines the mediation strategies used. Mediation encapsulates the resolution, agreement, and facilitation, of bringing a dispute to a conciliatory outcome. Mediation facilitates disputing parties to come to an agreement by a third party neutral. Jan Ki-moon states that: “The premise of mediation is that in the right environment, conflict parties can improve their relationships and move towards cooperation.”

Mediation is a part of the Alternative Dispute Resolution (ADR) process and is an alternative to resolving disputes in court. In the article Ethics in Alternative Resolutions: New Issues, No Answers from ‘The Adversary Conception of Lawyers’ Responsibilities,’ Carrie Menkel-Meadow, states that the early proponents of ADR reiterated that the courts were not meeting the needs and underlying interests of the parties. In his article, Don Peters states that “participation by parties with authorities to settle is usually critical to a successful mediation.” Smith and Smock, describes mediation as “an art form, incorporating, intuition, subtlety, and vision.”

MAIN CORPUS

Israel’s Culture

It is said that the most noted forum to deal with conflicts in Israel is through the courts. Although there is no data to ascertain the number of mediation that takes place in Israel, it appears that mediation is usually used in family disputes, and handled in family courts. Cultural aspects appear to play a significant role in family mediations in Israel. The role of culture in family mediation has also been seen in other societies, such as Australia and New Zealand, where mediation has been integrated into the divorce process.

In Israel’s culture, there are religious tribunals that do not have official status but act as special courts in the community, and the disputants agree beforehand to their adjudication. It should be observed that the word adjudication is used because the tribunal uses Jewish religious law or the law of ‘Torah.’ The relevance is that adjudication is usually used in the context of the legal system and not mediation. The significance of religion in mediation is noted by Kamila KLINGOROVA and Tomas HAVLICEK: It is noted that every religion promotes somewhat different norms, creates different institutions, and builds on different cultural and historical foundations.

In Israel’s culture, mediation is historically relatively short, dating back to 1972, when a lady by the name of Sylvia Maundelbaum at 92 years old and originally from the US, assisted her daughter in her divorce, after her migration to Israel. According to Ronnen mediation in Israel was a new way of dealing with conflict and emerged mainly from the expertise of the US, where the mediators used rules to create new methodologies into the local system. The growth of mediation in Israel was seen in 1990 when an open organized mediation course was given by Shamir in 1998 and Dotan the head of one of the first mediation centers took a course in the US.

Before 1992 parties in dispute had to rely on the law of torts, contracts, and advocates. During the period of 1992, there was an amendment to the Courts Law, and ADR legislation was enacted, enabling the court to rule by compromise with regulations following in 1993. Even after legislation, the judges did not refer parties to mediation. The Bar Association felt that lawyers by virtue of their training did not need additional training to mediate. This is contrary to the ethical responsibility of mediators, which is pronounced under the rules on Dispute Resolution of The Supreme Judicial Court of Massachusettes which illustrates the basic approach of neutrals: “The neutral shall make every reasonable effort to ensure that each party to the dispute resolution process…amongst other things understands the nature and character of the process…”

The Court System

The court system in Israel was reviewed and major changes occurred between 1995 and 2000 with Aharon Barak, the President of the Supreme Court of Israel. President Barak understood a very important aspect of mediation which is consent, along with the compliance of the community. In this approach, the results were positive and successful, allowing communities to solve their own problems.

The right technique is an important part of the mediation process but in Israel, there is another aspect. It is the consumption of coffee that is said to be part of the culture of Israel. It is interesting to note that drinking coffee has been added to the mediation process, with a specific style of drinking inculcated into the mediation room. The ritual of the coffee preparation and drinking helps not only the mediator in relaxing the environment but assists the parties in conflict to be more amenable to the discussions. Coffee drinking is said to bring a connection between personal and public dynamics, which creates empowerment.

SUMMARY

Israel is rooted in its culture, religion, and legalism. The ethnographic dimensions of Israel’s culture and norms are seen in the history of mediation. The history of mediation in Israel began in an ad hoc manner and was conjoined with court proceedings. This lent itself to numerous challenges especially when mediators had to rely on the judiciary for clients. A positive aspect was that the President of The Supreme Court, President Barak was instrumental in causing an amendment to facilitate mediation.

CONCLUSION

The examination reveals that living in a conflict society does not impede Israel in its hope of conflict resolution. Although, there is still much more to be done in having a more independent process, which is free from judicial influence. It reveals that Israel has a very strong and religious culture that does not diminish the actualization of conflict resolution. Understanding the culture helps to understand the mediation process and conflict resolution. The understanding of Israel’s culture can assist substantively in mediation success. If culture and national ownership are integrated into the mediation process, it is anticipated that this will cause the society to promote more independent institutions which can facilitate mediation resolutions, nationally and internationally.

POTENTIAL SOLUTION *

The most interesting observation in this article is also the one most easily dismissed. The coffee ritual is not a charming local detail; it is a working method. Preparing and sharing a drink before business begins establishes hospitality, equalises the parties for a few minutes, gives everyone something to do with their hands while tension settles, and marks the transition from confrontation to conversation. Comparable practices exist wherever mediation has grown from local roots rather than been imported, and they are the element most reliably lost when a process is professionalised. A mediation field that documented such practices deliberately, asking what each one accomplishes rather than treating it as folklore, would develop a repertoire that no imported curriculum supplies.

That points to the article’s underlying tension. Mediation in Israel, on this account, arrived from American practice and was then attached to the courts, which is a common trajectory and produces a common difficulty: a method shaped by one legal culture operating within another, and practitioners dependent on judges for referrals. Dependence of that kind shapes practice quietly. Mediators who rely on court referrals have an interest in producing the outcomes referring judges expect, which is settlement, and settlement pressure is precisely what mediation is supposed to avoid. Building demand outside the courts, through community centres, workplace and commercial schemes and public education, is what allows the profession to set its own standards rather than adopt the court’s.

The relationship with religious tribunals deserves more attention than it usually receives, and it is a question familiar from many legal systems. Communities that resolve disputes through their own religious institutions are exercising a genuine preference, and those forums carry authority that state institutions cannot replicate. The difficulty is that adjudication under religious law, entered into by prior agreement, is not mediation and does not offer what mediation offers: the parties author the outcome themselves. A workable arrangement recognises both, by making facilitative mediation available alongside religious adjudication rather than instead of it, so that parties know they have a choice, and by ensuring that anyone who consents to a religious forum does so informed of the alternative and of their rights under state law. In family matters this safeguard matters most, since it is there that the weaker party is least likely to know what other options exist.

Finally, the article’s closing point about national ownership applies more widely than to Israel. Mediation practice travels well in its principles and badly in its detail. What transfers is the underlying commitment to party self determination; what does not transfer is the manner in which respect is shown, disagreement expressed, or agreement sealed. Every mediation culture that has taken root has adapted the second while keeping the first, and the article’s example of the coffee is a small demonstration of exactly that.

* Added by the WMO Editorial Team

REFERENCES

References

Edite Ronnen, 1. “Mediation in a Conflict Society, An Ethnographic View on Mediation Processes in Israel” (The London School of Economics and Political Science, 2011).

Kamila Klingorova; Tomas HAVLICEK, 1. Religion and Gender Inequality: The Status of Women in the Societies of World Religions,” Moravian Geographical Reports 23 (February 2015): 10.

Lela P. Love and John W. Cooley, 3. “The Intersection of Evaluation by Mediators and Informed Consent: Warning The Unwary,” Ohio State Journal on Dispute Resolution 21 (January 20, 2005): 19.

Madelene de Jong, 3. “Divorce Mediation in Australia – Valuable Lessons for Family Law Reform

Smith and Smock, 7 “Peacemaker’s Toolkit, Managing a Mediation Process.”

Supplementary references added by the WMO Editorial Team

Menkel Meadow, C. (1997). Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities. South Texas Law Review, 38, 407.

Uniform Rules on Dispute Resolution, Supreme Judicial Court of Massachusetts, Rule 9.

The Courts Law (Consolidated Version), 5744 1984, Israel, section 79C on mediation, and the Courts Regulations (Mediation), 5753 1993.

Israeli Ministry of Justice, National Center for Mediation and Conflict Resolution, programme documentation, Jerusalem.

Alberstein, M. (2007). The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations. Cardozo Journal of Conflict Resolution, 11, 1.