For those with courtroom experience, the Judgment Day of Rosh Hashanah might feel more frightening, as we can viscerally imagine ourselves standing in judgment in front of the ultimate King, Ruler, Judge, Jury and Executioner. As an attorney and mediator, I often think about the pleading that we do on Judgment Day and how it compares with the pleadings submitted to a human court of flesh and blood.
In the court of humans, we plead our case to the judge, who we hope is objective, neutral and fair-minded. In the pleading of Rosh Hashanah, we are looking for a very different kind of Judge and judgment. We are not interested in neutrality, objectivity or fair-minded judgment. After we plead: “Forgive us, pardon us, atone for us,” we call out to the Judge in Heaven proclaiming:
“We are Your people and
You are our God,”
“We are Your children and
You are our Father,”
“We are Your Friend and You are our
Beloved.”
What kind of courtroom pleading is
this?
If this was a real court, we would get kicked out of the courtroom. If this was a real judge, there would be a motion for recusal. In fact, some of the causes of recusal are those very same proclamations that we declare, including our close relationship to the Judge—as close as a father! We point out the substantial interest (or conflict of interest) seeking to convince the Judge to rule with bias in our favor. Yes, we want bias. We want prejudicial treatment. And, thankfully, our tradition gives us the confidence that reminding the Judge about our patriarchs, among others before us, we have the yichus and “protectsia” to request a meritorious outcome.
If only a mortal judge could be so convinced!
As a lawyer and mediator, I ask myself what we are seeking from a mortal judge. Do we really want someone distant, objective and neutral? Or do we want someone who will be on our side, seeking to understand how we see it—to be finally heard in our day in court.
On a daily basis, I need to answer similar questions when I mediate between parties in conflict, typically between divorcing couples. What is my role? What role do my clients want me to serve? Do they want a neutral, objective third party, opining on the merits of their case from behind the bench or desk? Some might. But, in my experience, most don’t.
Mediation and ‘Positive Neutrality’
Two dear colleagues and mentors of mine, Gary Friedman and Jack Himmelstein1, have coined the term “positive neutrality” in the context of mediation which deepens our understanding as to the ideal role of a mediator and how to best serve clients in conflict. Positive neutrality describes a neutrality of connection, not of distance.
Neutrality of the Judge
Our courtroom judges serve through a neutrality of distance. The judge comes out of chambers in a uniform black robe to show distinction and separation. Everyone in the courtroom then stands as the judge sits behind what is typically a very large and high desk, further increasing distance and separation. The judge is addressed in third person, with distinction (“Good morning Judge.” “Thank you Judge.” “Yes, Your Honor,” etc.). The relationship to the neutrality of a judge is a relationship of distance, created by boundaries inherent in the courtroom and the judicial system. This distance helps to create a hierarchy of authority and avoid any appearances of bias or impropriety. There is fear and trepidation as each side speaks up and presents their case. The judge is the trier of facts, to determine right, wrong and truth, and both sides are at the judge’s mercy.
Neutrality of the Mediator
In contrast, the mediator does not determine facts, or right or wrong. The mediator, sitting together with the parties, seeks to understand both sides and help them work out an agreement that is acceptable to both. The mediator is not the judge or jury. Mediation, when best practiced, is done through a neutrality of connection. Instead of distance, the mediator seeks to connect, and with compassion, better understand each side and the reality that they each face. Through this deeper understanding of each side, the mediator is able to create a safe place to find out what is important to each, and with that information, help the two sides forge an agreement that works for them and their family. And while the mediator serves in an impartial and neutral role, it is through connection and trust building that the best resolutions can be reached.
Divine Judgment Through Connection
It seems to me that on Rosh Hashanah, we are looking to tap into a judgment from the Ultimate Judge, who is not neutral, but with whom we are connected. Through connection, trust, compassion and mercy, we seek judgment. The energy and spirit of teshuva (repentance, or “return”) is a movement towards, to return to, not move away from. We seek connection with the Divine and judgement through this connection. For me, the notion of positive neutrality of the mediator offers an out-of-the-box insight into the theology and provides a meaningful frame on this Day of Judgment.
May we all merit health, happiness and connection in this unusual New Year 5781.
Adam Berner specializes in mediation and collaborative family law and is the owner of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the family dispute resolution field for the past 25+ years, he has served as president of the Family & Divorce Mediation Council of NY and founding president of the NJ Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law, where he teaches mediation and collaborative law. Additional information can be found at www.MediationOffices.com
