Execute Justice and Charity for Your People: Jewish Divorce Mediation as a Model for Intrareligious Peacekeeping

Abstract

This article explores the complex issue of disharmony within religious marriages, focusing on Jewish approaches to divorce. Contrasting Jewish divorce mediation with other religions’ approaches to marital conflict, this article examines two Judaic models: one viewing divorce as a severe remedy permissible only under certain circumstances, and the other allowing for divorce when a marriage is irreparably broken. The author highlights the positive Jewish commandment to peacefully divorce, discussing how mediation integrates compassion and justice, in line with Jewish legal and ethical traditions. This work emphasizes the benefits of community-based divorce mediation, including lower costs, shorter timelines, and increased communal acceptance. Jewish divorce mediation, the author argues, is particularly effective in maintaining child-centeredness and co-parenting relationships post-divorce. This article calls for a broader adoption of Jewish divorce mediation through charitable organizations to effectuate Jewish family values and provide amicable resolutions within the Jewish community.

1. Introduction

Marital disharmony is an intrinsic reality in all marriages, including marriages of people of faith. There are several competing ways to address disharmony in religious marriages.

For example, Catholicism prohibits divorce; thus, discord in Catholic marriages must be endured (Madera 2022, p. 629). In the Catholic church, spousal unions are undissolvable, akin to the bond between a parent and child that continues until death (Madera 2022, p. 629). Another method that resolves marital conflict sees marriage as consisting of two people who share life together but who may also unilaterally end the relationship at any given time; this approach rejects the notion of marriage as an unbreakable, privileged relationship.1

Within Judaism, there are two competing models for addressing marital discord: the first views divorce as a permissible but severe remedy that should be limited to circumstances of fault; as stated in the Talmud’s2 commentary on the final book of the Bible: “anyone who divorces his first wife is hated by G-d for severing from the woman to whom he was bound in companionship and covenant, that even the altar sheds tears over him”.3

The other Judaic approach maintains that a marriage can be legally ended whenever the relationship between a husband and wife is irreparably broken down (Rabbi Akiva’s opinion in Mishna Gittin 90a). In the Mishna tractate Gittin (a legal code that covers the technical aspects of writing and delivering a get or bill of divorce), Rabbi Akiva—considered to be “Chief of the Sages” in the second century—holds that a man may divorce his wife even if the reason is simply that he finds another more attractive woman and wishes to marry her (Rabbi Akiva’s opinion in Mishna Gittin 90a: “And it comes to pass, if she finds no favor in his eyes”).4 Other prominent and widely followed Rabbinic commentators and legal scholars assert similar positions, arguing, for example, that mutual consent to end a marriage is itself sufficient so long as neither party has been intimidated into the divorce (see Pitchei Teshuvah, Shulchan Arukh, and Rema Even HaEzer 77:2). Rabbi Moshe Feinstein (1895–1986), one of the most influential Rabbinic authorities of the 20th century, held that a marriage deemed to be irretrievably broken should be terminated, and both parties must comply with the process collaboratively and without protest (Igrot Moshe Yoreh Deah 4:15(2)). Both of these models that exist in the Jewish tradition—despite their differing thresholds for divorce—recognize the value of a dissolution that prevents either or both parties from acting destructively towards one another.

In fact, the Jewish tradition calls for peacekeeping to be incorporated into the Jewish divorce process: It is considered a mitzvah (positive commandment) for a separating Jewish couple to effectuate a peaceful, proper religious divorce (Novak 1972, pp. 77–94, 90).5 While the proceedings of Jewish divorces have historically made peacekeeping an integral element of the judicial supervision,6 for most of North American Orthodox Jewry today—as opposed to in Israel, for example—access to pro-bono family mediation services is rather limited.7 This deficiency exists despite the longstanding Jewish values discussed above.8 Two of many possible explanations for this include communal taboos and other social and cultural norms surrounding divorce. As a result, openly providing Jewish divorce mediation in North America is still perceived as somewhat radical (Meijer et al. 2023)9—even in the face of its compelling and unique capacity to provide transformative intrafaith peacekeeping (Barton 2022, p. 50) as imagined by Torah law and other Jewish imperatives.10

2. Alternative Dispute Resolution Is a Jewish Virtue

One of the most important positive commandments in the Torah is to set up courts to interpret and decide questions of law (this norm applies to both Jews and gentiles alike and is the seventh Noachide law, extrapolated from Genesis 9:4–6) (Deuteronomy 16:18; Deuteronomy 1:17). Chapter sixteen of Deuteronomy discusses the rules surrounding the commandment to “appoint judges and officers in all your gates, which G-d is giving you” (Deuteronomy 16:18; Deuteronomy 1:17). The ethos infusing this system of law is provided for two passages later: “tzedek tzedek tirdof”, or “justice, justice thou shalt pursue” (Deuteronomy 16:20). The Jewish concept of tzedek is somewhat elusive: It stands in contrast to the idea of mishpat, which refers to strict legal justice, or a positivist-approach to legal adjudication (Jacobs 2008, p. 108). Commentators of the passage in Deuteronomy explain the double language of “tzedek tzedek” (justice, justice) by distinguishing between the first and second uses of the word—the first calling for justice and the second demanding something more: a judgment that is informed and motivated by compassion, compromise, and the pursuit of peace (Sacks 2013). Jewish adjudication places a premium on resolving conflicts without finding a winner and leaving behind a loser, an outcome that would reduce collective communal peace (see, e.g., Rambam Hilchot Sanhedrin 22:4).

This process of dispute resolution is nuanced, and the Talmud records debates between early Rabbinic authorities over which form of biblical justice should take precedent (Talmud Sanhedrin 6b-7a). While some commentators regard strict laws as the superior method of conflict resolution, others urge tempering formal laws with peace (Talmud Sanhedrin 6b-7a). The latter authorities hold that it is a mitzvah to mediate a dispute amicably, citing, for example, Zechariah 9:16: “Execute the judgment of truth and peace in your gates” (Talmud Sanhedrin 6b-7a). This interpretation of justice sees peace as something embedded in the law, as opposed to standing inapposite to it; it demands judgments that incorporate peace within them (Talmud Sanhedrin 6b-7a). Central Jewish legal authorities such as Maimonides (1138–1204) and the Tur (1269–1340)11 hold that it is a mitzvah for a judge to offer mediation to disputing parties in place of strict justice at the outset of adjudication (Rabbi Yaakov ben Asher, Arba’a Turim, Hoshen Mishpat 12:2). For Maimonides, the imperative to propose alternative dispute resolution (ADR) is applicable at every point in the proceeding before a final judgment is rendered, even after all arguments are heard (see Maimonides, Hilchos Sanhedrin 22:4: “It is a Mitzvah to tell the parties at the beginning ‘do you want Din, or Pesharah [compromise]?’ If they want Pesharah, we compromise for them. A Beit Din that always does Pesharah is praiseworthy. This is before the verdict, even if you heard their words and know which way the verdict leans”). Thus, striving for peace in resolutions is not only a legal preference, but a religious duty; it is a fulfillment of the Torah’s mandate “to do that which is right and good in the sight of the Lord” (Talmud Sanhedrin 6b-7a: “And similarly, with regard to David, it says: ‘And David executed justice and charity to all his people’ (II Samuel 8:15). And is it not that wherever there is strict justice, there is no charity, and wherever there is charity, there is no strict justice? Rather, which is the justice that has within it charity? You must say: This is mediation”). The very foundation of Jewish dispute resolution is the seeking of peaceful outcomes. Embedded in its system of law is mercy, compromise and peace (Talmud Sanhedrin 6b-7a). As such, mediation is an application of core Jewish values, one that enables Jewish disputants to handle conflict with dignity and respect and to find outcomes that are constructive rather than destructive (Talmud Sanhedrin 6b-7a).

3. Unique Outcomes of Jewish Divorce Mediation

In Judaism, there is no more privileged human relationship than that between a husband and wife (Krieger 2010, pp. 154–65). Unlike early civilizations, such as Ancient Mesopotamia and Ancient Greece, where the city-state defined identity and determined boundaries, in Judaism, it is the family that functions as the essential organizing unit (Krieger 2010, pp. 154–65). Indeed, the first positive commandment of the Torah is to “be fruitful and multiply” (Genesis 1:28) a commandment that presupposes taking a spouse and creating a family. On a national level, G-d organizes the Jewish people by way of family. This can be seen in the foundational story of G-d’s redemption of the Jewish people from slavery in Egypt where he commands the fleeing slaves to act “according to your families”.12 Because the family unit plays such a central role in Judaism (PePi 2013, pp. 367–86), when there is conflict in a Jewish marriage, the stakes are extremely high; and when divorce becomes a reality, there is a potential for explosive outcomes—like splitting an atom.

And yet, at the same time, as discussed above, Judaism contemplates and provides for divorce13 and demands peaceful resolutions whenever possible. This trifecta—the sanctity of the family unit, the provision for divorce, and the imperative to find peace—renders family law a fertile and consequential space for examining methods that achieve tzedek (as compassionate justice).

Jewish divorce mediation utilizes several distinct tools to meet the demands of tzedek. Given my background as a Jewish divorce mediator, in this article, I use the term Jewish divorce mediation as coterminous with the type of mediation I employ within the Jewish Divorce Assistance Center of Los Angeles (JDAC).14 Namely, it is a practice of divorce mediation carried out by mediators who exclusively service the Jewish community and who are themselves embedded within the community they service (or are committed to and well versed in its religious and communal norms). Some examples of unique forms of peaceful outcomes achieved by Jewish divorce mediators include the following: (1) a requirement to act with child-centeredness (ninety-nine percent of the cases that JDAC has worked on involved one or more children); (2) the understanding that the finances of divorce and child custody are inextricably intertwined; (3) an acceptance of the reality of divorce (as opposed to singularly pushing for reconciliation); (4) lower costs and shorter timelines compared to both secular and other forms of ADR; (5) a striving for both parties to achieve fresh and peaceful new starts; (6) the facilitation of greater communal tranquility in the face of conflict; and (7) maintaining a connection for both parties to their faith and faith community. The process of this peacemaking and its outcomes can be readily observed upon an examination of many Jewish divorce mediators’ practices, and these features are endemic to their work. Some examples will be discussed and analyzed in the next three subsections, reflecting a multidisciplinary methodology needed for such analysis.15

3.1. Children as the Focal Point

Like other forms of divorce adjudication, Jewish divorce mediation helps parties resolve issues such as child custody and child support. But Jewish divorce mediation distinctly facilitates ongoing communication between parents that can be crucial for co-parenting after divorce (Berner 1997). Opting to effectuate a Jewish divorce through mediation allows separating couples with children more freedom to make mutual agreements as to how they would like to proceed as a family after their marriage has ended, especially because cultural and religious customs are integral to Jewish coparenting arrangements (Berner 1997). Jewish divorce mediation principles encourage positive coparenting relationships between former spouses raising children together after separation. Accordingly, Jewish law appreciates the overlapping nature of divorce finances and child custody. While neither secular nor Jewish law can mandate that parents love their adversary, Jewish divorce mediation can demand a child-centeredness that requires kindness towards erstwhile opponents, thereby enabling parents to make choices that manifest true love for their children (Rema Even Haezer 119:8 “It is permitted for a man to feed his divorced wife. It is a Mitzvah [to do so] more than [feeding] other poor people”). Thus, Jewish divorce mediation integrates a tradition of seeking to maintain peace and the preservation of all parties through the completion of the divorce process and beyond, including the wellbeing of future generations (Rema Even Haezer 119:8). In these ways, Jewish divorce mediation provides for the stability of the general Jewish community at large (Rema Even Haezer 119:8).

Jewish law takes the secular standard of the child’s best interest that is uniformly applied in all fifty American states a step further by placing an even greater emphasis on effective co-parenting. For this reason, Jewish divorcing couples are particularly in need of and benefit from a creative, collaborative forum for resolving parenting disputes that can be provided by Jewish divorce mediation as it preserves peace and necessitates collaboration between spouses who share children. Jewish divorce mediation enables all parties to focus on the children who stand between them; the process maintains that they are the primary byproducts of every aspect of the marital dissolution and directs parents to put aside any deeply wounded feelings––no matter how legitimate––in the pursuit of taking care of the vulnerable.16

Indeed, in this way, Jewish divorce mediation implicates a double obligation: to care for those who are weaker as well as to care for one’s progeny.17 Jewish divorce mediation is transformative in that its child-centeredness strives to leave parents with (relative) post-marital harmony. This peace is not a restoration to the status quo ante. Instead, it accepts the reality of conflict and transforms it into a viable and lasting non-marital relationship that is both peaceful and acceptable by the disputants (see Barton on peace transformation, footnote 1 supra note). Thus, mediation bypasses the hostility associated with divorce litigation, or strict adjudication, and replaces it with duties of mutual respect and commitments to coparent compassionately.

In his book of responsa, Rabbi Ovadia Yosef (1920–2013)18 provides commentary on Jewish parental support of their children––financially and spiritually––well into adulthood and the practice of following the normative culture within the parents’ community to determine parental assistance as children grow older, regardless of marital status.19 Codified Jewish law deems parents who support their grown children as charitable and holds that charity toward one’s children should take precedence over other forms (Shulchan Arukh Yore Dea 251:23: “If you support your grown children whom you are not obligated to support [those over the age of six], and you are not able to support them except by using your charity money, and they need this support—this constitutes charity; and what is more, they take precedence over others”). Even as adults, Jewish children remain the centerpiece of Jewish family life, and this prioritization of children in marriage does not change simply because parents become divorced; instead, separated Jewish parents are equally obligated to coparent as their married counterparts (Kitzur Shulchan Arukh 34:6).

In summary, Jewish divorce mediation enables couples to manifest the Torah obligation to raise children as best as they are able, all things considered. This is an obligation that is so central to Jewish ethos that it can stand separate and apart from marriage altogether.20 At its core, Jewish divorce mediation’s entire purpose is to find a path towards divorce that precludes the discarding of any children involved.

3.2. Community Economic Sustainability—Lower Costs, Shorter Timelines

Jewish community-based divorce mediation can be quicker and less costly than other divorce proceedings21—including both secular and other forms of ADR. This is due in a large part to the fact that Jewish divorce mediators are often deeply entrenched within the same Jewish communities as the families they are assisting. Their embeddedness provides them with a cultural competence that enables clients to more readily articulate their value-based needs as compared to other mediation forums that may service a broader spectrum of families and consequently not offer faith-tailored, faith-centered services (Broyde 2015, pp. 111, 135–36).

There are significant features of Jewish divorce mediation that can accelerate attempts to adjudicate in ways other forms of ADR cannot. For example, when mediators are themselves “embedded neutrals” (Welsh 2010, pp. 395, 397–98), a shared system of beliefs and values between mediator and disputants generates “buy-in” and often creates a natural rapport that shortens the startup costs of ADR and allows mediators to turn to the solution phase faster. Mediator identity is central to the success of religious divorce mediation, as “mediators bring with them, consciously or otherwise, ideas, knowledge, resources, and interests of their own or of the group/organization they represent” (Bercovitch and Kadayifci-Orellana 2009, p. 175). Jewish divorce mediators are attuned to the challenges specific to Jewish marriages and dissolutions because they are either active participants in the community themselves––outside of the mediation world––or deeply dedicated to understanding the Jewish community and its laws surrounding marriage (Bercovitch and Kadayifci-Orellana 2009, p. 175). Addressing Jewish divorce from an intrafaith perspective provides faith-based professionals with a moral and spiritual legitimacy that facilitates comparatively amicable divorces (Bouziane 2016).

In these ways, Jewish divorce mediation provides a forum for parties to resolve disputes in accordance with their religious beliefs and values. This alignment of dispute resolution with personal faith can lead to more satisfactory and culturally coherent outcomes for the parties involved (Helfand 2015, pp. 2994, 3012). Jewish divorce mediation actualizes a higher level of communal trust and acceptance, which can further enhance the legitimacy and effectiveness of the mediation process (Helfand 2015, pp. 2994, 3012).

In addition, Jewish divorce mediation offers an opportunity for an increasing segment of religious disputants who in today’s bombastic context of social media feel that their family values are reflected neither by the broader society nor secular law (Broyde 2015, pp. 111, 135–36). These religious actors feel alienated from the standard systems of dispute resolution that are in place, including general ADR, and view such systems as unable to respect and integrate their own distinct values (Broyde 2015, pp. 111, 135–36). In contrast, they look to Jewish divorce mediation as a forum for resolving disputes according to shared principles and traditions. Put together, these features of Jewish divorce mediation not only decrease the timeline and thereby the costs associated with divorce but also increase the likelihood that Jewish divorcing couples opt for mediation in the first place22—as opposed to its more adversarial, timely, and costly alternatives.

3.3. Community Participation, Acceptance, and Cohesion

Navigating divorce from an intrafaith angle—meaning the dispute is kept and resolved within the religious community—generates community acceptance of the reality of divorce and reduces the stigma associated with marital conflict (Hacker 2008). Utilizing religious mediation also increases the likelihood that parties can remain in their faith community post-divorce and minimizes the sense of outcast that is often resultant from straying outside the community in a time of familial instability (Marburger 2005, p. 4: “there is a severe and often misunderstood Halachic prohibition against litigating in civil courts” without first going to Beit Din or without rabbinic dispensation).

Jewish divorce mediators are uniquely equipped with a network of similarly culturally competent colleagues to refer parties to when additional community services are needed: for example, when a mediation uncovers underlying issues such as substance abuse, gambling, or other forms of addiction, or when child, adult, and/or co-parenting therapy emerges as useful or necessary. In doing so, Jewish divorce mediators engage community leaders such as synagogue rabbis, school principals, school therapists, or children’s teachers, among others, in the process of Jewish divorce. This dynamic forces religious leaders to confront the reality of divorce within their faith community and to incorporate it within their communal vision. Furthermore, the fact that mediators are embedded in the Jewish faith increases the likelihood that both parties maintain their ties to their Jewish faith community, preserving the peace of the community in the bigger picture. Typically, the husband and wife, as well as mediators, are one to two degrees separated in their communities, further reinforcing the sense of normality of the process and its outcomes (both before and after divorce, they may sit next to each other in synagogue, or their children may be classmates in the same school—as two examples).

Jewish divorce mediators do not just work within the dyadic process of divorce. As experts in family law, Jewish law, and in peer-to-peer communication, they take it upon themselves to educate the community at large about the essential aspects of Jewish divorce, including the “get” (Jewish bill of divorce). Such efforts ensure that couples are well informed about their religious obligations and the implications of their decisions. This education includes impressing upon divorcing (and marrying) couples the imperative to obtain a get and incorporating this step into the mediation process itself. Jewish divorce mediation thus increases the likelihood that a get is timely given by the husband and received by the wife in conjunction with other end of marriage issues.23

The timely issuance of the get not only promotes peaceful outcomes for couples but also benefits the community as the issues that arise from get abuse—ranging from delaying the get to straight up extortion24—tend to devolve into the most acrimonious of Jewish divorces. Moreover, they create division among the Jewish community that is home to the couple, pitting one spouse against another, both of whom demand that other community members take their side. Often, the local Rabbi and Jewish court find themselves in the middle, dealing with these types of nasty and time-consuming divorces that have escalated to a point of no return. These outcomes can be avoided if couples have access to Jewish divorce mediation at the outset.

The Jewish community at large also bears the brunt of divorces gone awry; frequently, couples who escalate their end of marriage conflicts spend considerable personal funds to adjudicate their divorces and therefore experience financial strain resultant from costly and litigious alternatives to mediation. It is the Jewish community that ends up supporting these families on the backend—as opposed to on the front end by creating greater access to and awareness of Jewish divorce mediation. Communal support is infused by Jewish socio-cultural norms and can take the form of Jewish day school scholarships, free kosher food subsidized by community fundraising, and/or other free social services supported by local Jewish communities.

4. Final Sentiments

As John Barton (2022) notes in his book Better Religions, “conflict is not only inevitable and unavoidable in human affairs, it also represents positive opportunities” (supra note 1). Conflict within marriage is no exception—in many ways, it is the best example of Barton’s assertion. The Jewish tradition strongly encourages family counseling in those cases where a marriage can still be saved (Westreich and Shifman 2013). But what happens when a Jewish marriage is irretrievably broken? Indeed, the divorce rate within the American Jewish community at large, including the American Orthodox Jewish community, is on the rise (Carmel 2017). To deny this reality, or to sweep it under the rug, services neither individual couples struggling to navigate a traumatic life event nor the larger faith communities of which they are a part.25 For these reasons—in conjunction with the Jewish ethical and legal traditions discussed in this article—there must be a broader movement within Jewish communities and their leadership to frame Jewish divorce mediation not only as a uniquely effective tool for resolving disputes amicably and generating transformative peace but also as a process that is uniquely positioned to support Jewish tradition and family values in the wake of marital dissolution.