Sixteen years ago, Bill married Jennifer, his high school sweetheart, in a joyful ceremony at which I officiated. A few months ago, they stunned me with the news of their divorce plans. They had attempted to reconcile, but were now committed to ending the marriage. They informed me that since they were both rational people who respected one another, they were determined to divorce amicably.
Right now, however, Bill and Jennifer are embroiled in bitter divorce litigation. Legal fees have soared into the six-figure range and seriously threaten their estate. Their two families, who had been close for years, no longer speak; their friends have been forced to take sides. Jennifer has exchanged her beautiful home for a small apartment, and Bill has not seen his children for eight weeks.
How could good intentions go so awry? What went wrong?
Another sad account: Several members of my Los Angeles synagogue who serve on the board of Fairway Engineering, a public company, carried the day with their votes not to renew the contract of the company’s president. They approved a lavish package for the elderly outgoing executive, who was already fabulously affluent. The exercise of options, cash and retirement benefits, and real estate gifts added to his already legendary wealth.
At his farewell banquet, I heard him speak nostalgically of his years with the company and fondly of his colleagues. I was astonished to later hear that he filed a law suit against Fairway Engineering. Neither the ex-president nor his heirs could possibly spend more than a fraction of his vast assets. Yet this legal action, to extort many more millions from the beleaguered company, now consumed him.
Could the company have foreseen its problem? Even now, can the board escape the mammoth legal defense costs? Perhaps the most important question of all is: Why has our judicial system wrought such damage on American commerce and relationships between legal disputants? We all have our favorite villains to blame for the damage that the system is inflicting on American commerce.
The problem is that human conflict is invariably rooted in the soul, while the court system has come to resemble jungle warfare. We are using a physical tool to solve a spiritual problem. This is rather like using a speedometer to check the oven temperature, or a can-opener to perform heart surgery. It will not work. The failure is not the fault of the speedometer or of the can-opener. They are simply the wrong tools for the job.
In court, paid gladiators bludgeon one another mercilessly. The weapons are interrogatories, depositions, motions, and discoveries. Tactics stop just short of fisticuffs. Any alien getting his first view of humanity in a courtroom would conclude that we were creatures capable of expressing only anger, greed, envy, and aggression.
It was not always thus. Once upon a time, disputants settled issues chiefly by using the organ which is God’s great gift to man’s social order–the mouth. Through their oratory, judges elevated their courtrooms. Lawyers swayed opinions with finely crafted and logical arguments. Even today, reading speeches that the great jurists of the first one hundred and fifty years of the Republic gave can be a profoundly spiritual and intellectual experience. Sadly, however, today’s courtroom transcripts often reveal insensitive, strong-arm strategies that cannot possibly resolve disputes springing from the deepest recesses of the human soul.
Most human conflicts encountered in U. S. courtrooms fall into two categories: dissolution-of-relationship conflicts, or desire-for-money. The first includes divorce, termination of partnerships, and wrongful dismissal litigation. Occasionally the two are superimposed, as in medical malpractice law.
The first type of conflict is driven by a principle best revealed in the biblical word for “peace,” shalom. However, peace is the secondary meaning of the word, conditional upon the primary meaning, which is completeness. Peace depends upon a kind of unified totality. In other words, splitting apart a unified entity into its components releases potentially destructive energy. The physical reflection of this axiom is the explosion that can result from splitting the atom. Shattering the complete totality of an atom, a marriage, or a partnership inevitably removes the “peace.”
Not surprisingly then, the greater the love that once existed between a man and a woman, the greater the destructive energy released if they separate. The more profitable a business partnership and the friendlier the principals, the greater the potential for vindictiveness when the relationship ends.
One reason for the bitterness that this kind of separation causes is that two human beings, acting as one unit and possessing the Divine power of creativity, can accomplish, and build far more than the sum of what the two could achieve individually. The breakup produces a deep existential despair over unfulfilled potential. Divorce court procedure never addresses the weeping soul of a spouse. Rarely does a judge or jury relate to the pain of a departing partner or employee as an expression of spiritual grief. One mourns the diminished creative capacity that results from the severing of the relationship that used to make it possible for him to transcend his limitations.
Is it any wonder then that by failing to respond to people’s spiritual yearnings, our judicial system stimulates spite? Treating human beings, who carry within them a spark of the Divine, as if they were nothing but belligerent animals almost compels them to respond materialistically. Instead of communication and cooperation we get sullenness and domination.
Desire-for-money, the second type of conflict, is also spiritually fueled. Seldom is this type of litigation over “rent money.” More often, the plaintiff seeks a bonanza payout. Winning will improve a standard of living, but losing will not threaten survival. In comparable circumstances, no animal would fight. Lions will challenge anyone who attempts to seize the meal they are about to eat. However, they will not budge to secure a food supply for possible use some time in the future. As long as it has enough for the day, an animal is content. Not so humans.
The use of and desire for money is unique to humans and is the result of the way in which people relate to God. Consciously or not, most people think of God as infinite, unrestricted by limitations of time or space; He is omnipresent; He is infinitely powerful; He can cure and He can kill. That is why we consider Him worthy of our prayers. Part of our human nature is a deep and mostly subconscious desire to emulate God. We are deeply frustrated by our mortality and frantically try to defy with cosmetic heroics the rather ungodly tendency to age. Paradoxically, the accumulation of power also makes us feel more godlike. This ambition usually translates into an insatiable desire for money. The object is not necessarily to spend it; merely possessing it confers a tiny sense of godlike power. This is not the ideal way to satisfy our subconscious desire to draw close to God and emulate Him, but it does work.
The Bible illustrates this desire for the infinite when it relates the first case of fratricide in history. Cain and Abel fought over who would inherit the entire world from their father, Adam. One purpose in locating it early in the Bible is to demonstrate that neither brother was satisfied with half the world when he thought that he could have it all. Had the event occurred later, once the world’s population had increased, their fight would have been over a far smaller inheritance. With the entire world available, you would have thought that they could divide it; that half the world for each brother should suffice. Yet a human being endowed with a taste for the infinite is not happy with even half the world if the whole is in reach.
Furthermore, this was a struggle between two people who were very close to God. Their parents were actually formed by God Himself, and the brothers spontaneously felt the need to bring Him a gift. It was their very closeness to the Almighty that spurred them both on in their monumental but fatal struggle.
Fairway Engineering’s wealthy president came back to the money well with his bucket because he lacked a sense of godlike power. Had Fairway the ability to grant it, he may well gladly have relinquished further severance compensation in exchange for a sense of closeness to God. Since the state court has no mechanism to explore what might truly and deeply satisfy the ex-president, the final years of a vital and creative human being are being squandered.
Our society needs to try an alternative to litigation. It is not institutions, law firms, or corporations that institute legal proceedings, it is people. And people’s spiritual needs and urges are far more compelling than their physical drives. An alternative to conventional litigation is spiritually sensitive mediation. This is a process in which the two disputing parties sit around a table under the auspices of a mediator who is a kind of honest broker.
This is unsuitable for many conflicts, but for those it can address there are many benefits. Obviously spiritually sensitive mediation can help most litigants resolve their disputes far more quickly and far less expensively than conventional litigation. It is also more appealing not to hand off one’s fate to the capriciousness of a jury but to remain empowered by participating directly in negotiation with one’s nemesis. The biggest benefit of all is not even the confidentiality offered by mediation, although it is true that neither the dispute nor its settlement are public record. The biggest benefit is that relationships are salvaged. Neither the marriage nor the partnership could be saved. Both divorced parents’ relationship with their children can be preserved as can the possibility of ex-partners again transacting business together in the future.
Almost everyone knows that free citizens and their private enterprises can do most things better than can a government bureaucracy. Why not also litigation? Best of all, it can always be explored with little risk. At any stage disputants can abandon the attempt to spiritually resolve their differences and turn to the courts. I suspect that most who try it will like it. It is not only good business; it is also good morality.