Mediation Lessons From the Talmud: Making Peace in Mediation by Giving Others the Benefit of the Doubt

We have previously blogged about applying Talmudic principles in mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). This post will explore application of the Talmudic principle known in Hebrew as dan l’kaf zechut, or judging people favorably.

In Tractate Shevuot (30a), the Sages debate how to interpret the following command in Leviticus 19:15: “you shall judge your fellow with righteousness.” One opinion construes the verse literally to prohibit a judge from treating litigants unequally (such as by allowing one litigant to present his position at length while cutting off the other party prematurely before he completes his argument).

Another sage, however, understands the verse as a universal obligation to give people the benefit of the doubt. For example, when someone acts rudely towards us, do we reflexively attribute their conduct to malice and take it personally? Or do we pause and consider whether there may be extenuating circumstances (of which we are currently unaware) that provide a more benign explanation for their difficult behavior? The principle of dan l’kaf zechut teaches us to avoid knee-jerk reactions and withhold judgment until we have more evidence about the sources of someone’s troubling comments or conduct.

There are several modern analogues to the law of dan l’kaf zechut. For example, in the American criminal justice system, a defendant is innocent until proven guilty. In daily life, there is a helpful construct known as Hanlon’s razor that encourages us not to reflexively attribute an affront to malice when it might be explained by more innocent causes such as neglect or incompetence. As the Farnam Street website explains:

It’s a simple fact that most of us spend a large part of our day communicating with others and making choices based on that. We all lead complex lives wherein (as Murphy’s law states) things are constantly going wrong. When this occurs, a common response is to blame the nearest person and assume they have malicious intent. People are quick to accuse corporations, politicians, their bosses, employees, coffee shop workers and even family of trying to derail them. When someone messes up around us, we forget how many times we too have done the same. We forget how many times we have elbowed someone in the street, knocked over a drink at a relative’s house or forgotten to meet a friend at the right time. Instead, the perpetrator becomes a source of intense irritation.

Importantly, giving people the benefit of the doubt is not just a nice thing to do (although that’s certainly a good enough reason on its own to adhere to the practice). It’s also an eminently practical approach that can prevent unwelcome consequences. As the Farnam Street website further observes, “[m]aking enemies is expensive.” When we don’t resist the reflex to interpret rude behavior as an assault, a difficult encounter can rapidly escalate, resulting in all sorts of unfortunate repercussions such as violence, costly litigation, or damaged relationships. Instead, when encountering difficult behavior, consider taking “the high road.” As the Farnam Street website elaborates in a different essay:

Say something along the lines of “I can see that.” You don’t have to apologize. You don’t have to agree with what the other person is saying. But . . . [i]t’s hard to be angry with someone who agrees with you. And when there is no one to argue with and they’re the only person worked up about the situation, they will quickly feel uncomfortable and try to correct course.

Application in Mediation

These principles apply to mediation in at least two ways. First, when caucusing, a mediator can work with a party to dissect the sequence of events that precipitated the dispute. For example, a heated litigation might be traced back to a few simple misunderstandings that subsequently spiraled out of control. This is common in family disputes over inheritances or business succession, and in workplace disputes with coworkers and supervisors. Clarifying that no malice was intended by certain comments or conduct might dramatically change both side’s perception of the dispute and promote resolution and reconciliation.

Charged with zealously advocating for their clients, lawyers are not trained or inclined to encourage such soul searching. But as neutral intermediaries whose sole interest is resolving disputes and helping people move on with their lives, mediators can help parties explore alternative, less judgmental explanations for the other side’s positions.

Second, when encountering high-conflict individuals in mediation, it is important for mediators to regulate their reaction to difficult behavior. For example, a party might angrily reject one of the mediator’s sensible suggestions. Instead of taking the rejection personally and attributing it to stubbornness, a mediator should entertain that the party really wants to find a solution, but is simply feeling frustrated at the moment and using the mediator as a convenient punching bag to vent their anger. In such instances, a mediator might respond along the lines of, “I hear you. It’s frustrating trying to figure this out. Let’s take a short break, and then we can see if there’s a way to modify the proposal so it works for you. Or maybe you have other ideas you can share.” This approach — advocated by lawyer, mediator and therapist Bill Eddy, LCSW, Esq. — empathizes with a party’s feelings while simultaneously shifting their mindset towards problem-solving.

Of course, as the Farnam Street website observes, the wisdom of Hanlon’s razor does not mean we should be naive. Nor did the Sages intend the principle of dan l’kaf zechut to require us to throw caution to the wind (indeed, there is the countervailing Talmudic principle of “respect but suspect,” which counsels taking sensible precautions when dealing with a party we are not sure we can fully trust). Unfortunately, there are sometimes people who act with malice and intend ill will. That said, dan l’kaf zechut and Hanlon’s razor provide helpful counterweights to the natural human tendency to be judgmental by encouraging us to thoughtfully evaluate each situation on its own merits using experience, evidence, intuition and logic as our guides.

We welcome further insights from our readers.