Mediation Principles in the Talmud: Four Lessons From the Disputes of the Academies of Hillel and Shammai

Merge Mediation Group
Contact

The Talmud is an ancient Jewish text (compiled around 500 C.E.) that is a primary source of Jewish law and philosophy. Its pages are filled with debates between various Sages concerning Jewish ritual (e.g., Sabbath, festivals) and civil law (e.g., contracts, torts, marriage, divorce), as well as numerous philosophical and theological issues. Given the centrality of dialectic to Talmudic discourse, it can serve as a useful source of dispute resolution principles for mediators.

To illustrate, this post identifies four key dispute resolution principles emerging from the debates between two leading rabbinical academies that thrived in 1st Century B.C. Jerusalem and disputed literally hundreds of points of Jewish law: Beis Hillel (the House of Hillel the Elder) and Beis Shammai (the House of Shammai the Elder). We’ll first provide some historical context, and then highlight the relevant principles.

Historical Context

One of the Talmudic tractates, Ethics of the Fathers (or Pirkei Avos in Hebrew) (5:17), cites the debates of Beis Shammai and Beis Hillel as the paradigm of controversies that were for the sake of the truth. That is, neither side was motivated by self-aggrandizement or personal animosity, and neither side stubbornly stuck to its opinions. Instead, both schools were engaged in a search for the truth, and periodically relented when confronted with superior arguments or evidence supporting the opposing position (see, e.g., Tractates Eduyos 1:4, Pesachim 88b, and Gittin 41b).

The Talmud (Tractate Berachos 51b, Yevamos 14a) ultimately concludes that the law should follow the opinions of Beit Hillel because they constituted a majority. Elsewhere (Tractate Eruvin 13b), the Talmud adds that, while Beit Shammai’s opinions were also sound and well-reasoned, the law follows the opinions of Beis Hillel because they showed respect for Beis Shammai by teaching both their own opinions and Beit Shammai’s opinions (even going so far as to recite Beis Shammai’s opinions ahead of their own). This is similar to how American judicial opinions cite majority, concurring and dissenting opinions (and not just the majority opinion; albeit in American caselaw, the majority opinion always comes first).

Despite their ongoing disagreements, the two schools maintained cordial relations. In particular, while they held different views concerning certain laws pertaining to marriage and divorce, the families of the students of Beis Shammai and Beis Hillel still intermarried (see Tractate Yevamos 13b).

It is therefore surprising to read of an incident recorded in the Jerusalem Talmud (Shabbos 1:4) that, on its face, appears to indicate that Beis Shammai resorted to physical threats, and possibly even violence to impose their will on Beis Hillel in connection with the enactment of certain legislation:

These are the laws that were enacted in the upper chamber of the dwelling of Chananyah ben Chizkiah ben Garon when a large contingent of students from Beis Hillel and Beis Shammai went to visit him. On that occasion the students of Beis Shammai outnumbered those of Beis Hillel [and thus were able to pass certain enactments over Beis Hillel’s objections by a majority vote] . . . That day was a tragic one . . . Students from Beis Shammai positioned themselves below and made sure they retained their majority by threatening to slay any students from Beis Hillel who attempted to ascend to the upper chamber [to spoil Beit Shammai’s majority].

The commentaries dispute how literally to interpret the incident above. A leading German sage from the 1800’s, Rabbi Samson Raphael Hirsch, categorically rejects the implication that there were any physical threats, let alone violence or murder:

[I]t is clearly absurd to accept the notion that the Shammaites had used violence, in fact murder, to force a vote in their favor. For of what value would such a vote have been if it had been achieved by means of physical violence? . . . What good would have come from such terrorism? (Collected Writings, Vol. V, p. 87).

Rabbi Hirsch observes that the Babylonian Talmud (Tractate Shabbos 17a) records a similar incident involving the founders of the two schools, Hillel and Shammai (rather than their disciples), during which Hillel submitted to the authority of Shammai on particular issues. That incident is also described as tragic, and appears to arise out of the same visit to Chananyah’s dwelling that was recorded in the Jerusalem Talmud. But there is no mention of any physical violence.

Rabbi Hirsch also points out that immediately after the Jerusalem Talmud relates the purportedly violent acts of Beis Shammai, it indicates that the outcome of the incident was that eighteen decrees were enacted unanimously, another eighteen decrees were passed by Beis Shammai due to their majority, and yet another eighteen decrees were not passed due to a lack of consensus. If it were true that Beis Shammai enacted legislation using physical coercion, why weren’t they also successful in compelling passage of the eighteen decrees for which there was no consensus? Beis Shammai should have simply used the same physical threats to ram through those decrees as well. Moreover, eighteen decrees were passed unanimously, which suggests a degree of collaboration (not confrontation) between the two schools on that day.

For all these reasons, as well as the evidence of good will and cordial relations between the two schools (as noted above), Rabbi Hirsch concludes that the Talmud uses figurative language to convey that Beis Shammai acted assertively during that particular incident to compel Beis Hillel to bring certain important issues to a vote.

If, however, Rabbi Hirsch is correct that the incident should be interpreted in a positive light, why do the Babylonian Talmud and the Jerusalem Talmud both characterize the incident as tragic? A possible answer is that, as a matter of principle, the Talmud criticizes scholars whose legal disputes lead to personal animosity. For example, in Tractate Yevamos 62b, the Talmud records that a large number of students of the great sage Rabbi Akiva mysteriously perished within a short timeframe because, it is said, “they did not behave respectfully towards one another.” A leading Polish sage of the 20th century who wrote extensively on Jewish ethics, Rabbi Yisrael Meir Kagan (a/k/a the Chofetz Chaim), discusses the incident and explains that it is particularly shameful when prominent rabbinic scholars behave disrespectfully towards each other in public (see Kuntres Chovas HaShemirah, Introduction, paragraph 8 ).

Thus, it may be that while not becoming violent, the interactions between Beis Shammai and Beis Hillel during the relevant incident became heated, and degenerated into a level of disrespect that was deplorable given their prominent stature within the community. In other words, while the passage of numerous decrees through Beis Shammai’s well-intentioned assertiveness was a noteworthy accomplishment from the standpoint of legislation, the departure from the civility that had previously marked the debates between the two schools was tragic. Certainly a vital message for our times.

Mediation Principles

Regardless of what actually transpired during the incident recorded by the Talmud, the complex relationship between Beis Hillel and Beis Shammai conveys at least four vital principles of conflict resolution that can be applied in mediations.

First, we learn the value of validating the views of our adversaries. As noted, both Beis Hillel and Beis Shammai held well-reasoned opinions, but the law followed the opinions of Beis Hillel because they sought to understand and respect Beis Shammai’s positions. The message is that, during conflict, we should not just aggressively advance our own position, but as much as possible, step into the shoes of our opponents, and attempt to comprehend their viewpoint as well. As noted in a previous post on the role of empathy in mediation, particularly in disputes where there is a strong emotional component, it is up to the mediator to employ strategies that encourage parties to explore the perspective of the other side, and arrive at mutual understandings.

Second, disputants should not stubbornly stick to rigid positions, but instead remain sufficiently open-minded and flexible to adjust their positions based on the weight of the objective evidence and applicable law. To this end, a skillful mediator can help both sides evaluate the strengths and weaknesses of their respective positions.

Third, disputes should not become personal. As noted, despite persistent disputes over myriad subjects, the families of Beis Shammai and Beis Hillel still maintained cordial relations.

Fourth, in the context of any disagreement, despite the best intentions of the participants, there is always a risk that the dispute will degenerate into personal attacks. Indeed, even if the dispute between Beis Hillel and Beis Shammai did not actually become physical or violent (as Rabbi Hirsch maintains), the plain text of the Jerusalem Talmud may still deliberately suggest otherwise precisely to teach that even violence becomes possible when disputes become too heated. As such, both sides to a dispute should remain alert to subtle shifts in tone or rhetoric indicating that the debate is transitioning from problem solving to ad hominem, and seek to revert to civility.

A mediator obviously plays a critical role when it comes to maintaining civility during joint sessions so that each side can speak without interruption and feel it has been adequately heard. Among other things, the mediator can model civility through his or her own conduct such as tone of voice. At the same time, the mediator also needs to remain alert to any changes in the mood, and intervene if either party breaches the ground rules of civility.

Written by:

Merge Mediation Group
Contact
more
less

Merge Mediation Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.