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Mediation in Israel: Taking a Step Forward

February 28, 2008. Arutz 7: Hillel Fendel

(IsraelNN.com) The Justice Ministry is striving to keep pace with the meteoric rise of mediation, or Alternative Dispute Resolution (ADR), in Israel.

For one thing, this past Monday it abruptly informed the Knesset Audit Committee that the procedure for including mediators on official court lists would now be drastically changed.  Until now, mediators who wished to be recommended by the courts as mediators in various cases would be required to fulfill three Justice Ministry requirements: A Bachelor's degree from a recognized Israeli college, five years of employment in one's profession, and a certificate from a recognized mediators' course of study. The 60-70 hour courses are offered throughout Israel, and cost roughly 3,000 shekels (some $850).

On Monday, the Justice Ministry announced that the regulations were no longer in effect - it was even stated that they were actually never legally in effect - and that courts would now choose on their own whom to recommend for future mediation. 

"There were several problems in the way things were run until now," Dr. Peretz Segal of the Justice Ministry told Arutz-7. "For one thing, there were too many people on the lists.  It will now be up to the individual mediators to take the initiative and show the courts why they feel they are qualified, and the courts will use their own judgment in deciding whom to recommend."

The regulations were actually in the midst of being challenged in the Supreme Court.  Two mediators with college degrees from universities outside Israel demanded to be included on the courts' lists.  Knesset committee sources estimated that this appeal was instrumental in the Justice Ministry's change of heart.

Dr. Segal also said that a new experimental program will be implemented in three cities, beginning this Sunday: "Litigants in all cases involving more than 50,000 shekels will be asked to consider mediation, rather than litigation.  If both sides agree, this will be a major step towards relieving to a considerable agree the heavy case loads facing the courts."

Segal said that the program will be implemented in the Magistrates Courts in Tel Aviv, Ramat Gan, and Jerusalem, for a trial period of two years. "The cases involving high sums are the ones that take up most of the court's time," he said, "and we want to see if mediators can handle these successfully."

Compromise in Jewish Law
In Jewish Law, compromise is often seen as preferable to litigation in which one side will emerge the loser.  In fact, the classic Shulkhan Arukh code of Jewish Law quotes the Talmud in ruling that judges must always offer litigants the option of compromise before beginning the case.

The profession of mediation can be applied to a variety of disputes, including commercial, legal, workplace, community and family matters. 

Currently, over 6,000 mediators are registered on the courts' official lists, with more in the midst of applying.  The courts are interested in promoting mediation, in the knowledge that theire 500 judges are unable to deal fast enough with the increasing litigation rate.

Divorce Mediation
Sara Silber, a Business and Divorce Mediator, has written, "In Israel, with the increase in the divorce rate and lawyers’ fees and the overcrowding of courtroom calendars, more and more divorcing couples are seeking and being referred by the courts to divorce mediation... With recognition of how mediation can help families cope with divorce in a much healthier and calmer way and how it can help maintain a low state of conflict rather than exacerbating it, it is foreseen that more and more divorcing couples will seek that process as their modality of choice when the decision has been made to break up the family."

Critics of the mediation system say that increasingly, lawyers are sent to the mediation sessions to represent the sides, such that mediation thus becomes just another aspect of litigation.  Dr. Segal rejects this: "If this happens, the lawyers themselves often realize that they are in the wrong place - because the mediator's goal, as opposed to the lawyers, is to identify each side's best interests." 

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