The temple of justice

It is widely thought that Yuval Noah Harari, the famous Israeli historian and philosopher, and author of the best-selling books “Sapiens: A Brief History of Humankind” and “21 Lessons for the 21st Century,” is one of the most brilliant minds of the century. He seems to have the remarkable ability to see and describe the unseen forces that shape human behavior, in much the same way that Malcom Gladwell illuminates and makes clear the seemingly hidden ways in which we operate as a society. I must confess, when I read their books, I always end up saying to myself: “Why didn’t I think of that?” This time, after listening to Harari’s remarks on metaphor, I did think of it — the implications of the metaphor of the place of worship for the process of mediation.

One of Harari’s recurrent themes is the impact of metaphor in society. He isn’t talking about the usual sort of metaphor, meaning literary metaphor; he’s analyzing a much different kind of metaphor, one that affects society as part of the fabric of the tapestry that is human behavior. I recently saw him discuss this in a YouTube video in which he was having a conversation with the actor Natalie Portman. He was discussing why and how places of worship serve as a metaphor for the concepts of peace, redemption and salvation.

Harari theorizes that when we enter a temple, or mosque or church, we are seeking peace, salvation or redemption. These lofty ideas, goals or ambitions are just that — they are ephemeral and they are not physical. The church, temple, mosque serve as the physical metaphor for these concepts. They have no intrinsic value — they are, in fact, just buildings. But they take on the characteristics of the ideals that they represent and they become metaphorically a place of peace, salvation or redemption.

What does this have to do with mediation? As it turns out, a lot.

One of the recurrent challenges in resolving litigated disputes is the collision between the expectations of parties and reality with respect to what they can expect to achieve in a courtroom or an arbitration. I think that Harari’s theory about the metaphorical aspect of churches, temples and mosques applies directly to courtrooms and arbitration rooms. To put it simply, in the minds of most people, a courthouse is a kind of temple of justice. As a result, people expect to receive justice, peace, salvation and redemption when they enter the temple of justice.

Think for a moment about the many similarities between a place of worship and a courtroom. Both have a center aisle and pews. Both have a division between the audience and the “altar.” In most courtrooms the “altar” (the bench) is raised, just like the altar in a church. In both, you must be quiet and respectful, and there are special rules about standing, sitting and making a disturbance. In both, there are robes. Rarely, however, is there singing in a courtroom (perhaps the occasional “hallelujah” shouted out by a winning party). In both there’s lot of informal talking outside, but almost no talking inside except by those in charge. Some courthouses even look like temples — if you don’t believe me, take a look at the U.S. Supreme Court building, modeled on the design of a classic Greek temple. And, both are filled with ritual and have their own special language — in both there are supplicants (take a look the next time you are in court during law and motion hearings and tell me that the lawyers don’t look and act like supplicants).

What impact does this have on the mediation process? It creates a disconnect between fact and reality that impedes the resolution of lawsuits. The disconnect is simply this: In the minds of many people, especially those who venture into the legal system only one time, they have an unrealistic perspective on what they will achieve once they enter the temple of justice. They believe that they will, in fact, obtain peace, salvation and redemption. After all, that’s why you go to a place of worship. This is the construct of the idea of justice in our society — you have the opportunity to have a fair and impartial jury or judge or arbitrator listen carefully to your case, consider it thoughtfully and achieve a just result.

Unfortunately, the perception and the reality may be very different. Although our system works well, and although we strive to make it as good as possible and continue to refine it in the hope of making it even better, the fact is that the system exists for only one reason: to give litigants a resolution when they cannot reach a resolution by themselves. Sometimes it’s a “fair and just” resolution, but often it’s not. Often it’s the product of bias, inattention, confusion, inept representation, incorrect instructions on the law, admission of the “wrong” evidence or refusal to admit critical evidence and the overarching fact that in a trial the trier of fact sees only a small portion of a larger picture. In mediation, on this particular issue, I often use the metaphor of a Costco. The average Costco has 44,000 items. When you shop at Costco, you can walk every aisle and see all of them. But in a trial or arbitration, the trier of fact stands outside the Costco and looks through a small opening in the door — as a result, the trier of fact sees only a fraction of all the items in the store and has to make conclusions based on the small sample of facts. In short, there’s no guarantee that you will get what you want (although, as the Rolling Stones once said, you might just get what you need).

How does this belief manifest itself in mediation? Most often, by the following sort of statement by a party, usually at a point of frustration with the process: “I want to try my case in court. I want justice. I know that when I present my case, I’m going to win. I have a great case, they have a lousy case. Any judge or jury will see that.” What is this person really saying? I think that they are saying: “When I enter the temple of justice, I will receive peace, salvation and redemption, because that’s what you get in the temple of justice.” I sometimes think that we should rename the system. Instead of calling it the justice system, perhaps we should call it the system of “We will give you a result if you can’t figure one out on your own.” This might be a more accurate description and would have the added advantage of anchoring people’s expectations to reality, not mere belief.

Since all belief systems are, by definition, not fact-based (although true believers may think that they are) it’s often difficult to persuade someone who believes that they obtain salvation in the temple of justice that the actual outcome may be quite different. It’s a bit like trying to persuade a devout Catholic who believes to the core of their being that by living in a certain way you can spend eternity in heaven that there might in fact be a different outcome when he or she dies.

What lesson does this teach for increasing the chance of success at mediation? I think it falls into the category of preparing the client. A well-prepared client universally has a better chance of settling a case at mediation. In just the same way that you must prepare a client for mediation by explaining the mediation process, by emphasizing the need for compromise, by analyzing risk (and reward), so too must you try to make clients understand that trying a case in court can end up being more like a bar fight than a church service. Just because you might think of the courthouse as a temple of justice doesn’t mean that it is one. This pre-mediation preparation is essential for several reasons: First, clients rely first on their lawyers for advice, and only secondarily (or less) on mediators. If you have already delivered this message before the mediation, the affirmation of this concept by the mediator will tend to resonate and not be resisted. Second, it takes a while for this idea to sink in. For someone who has lived for a very long time with the temple of justice concept, it takes time to organize your thinking in a different way. The mediation with all the other things going on, and with its attendant stress and anxiety, is not the best place or time to introduce this concept for the first time.

So, when you next sit down to prepare for a mediation, consider putting the “temple of justice” idea on your list of items to discuss with your client. You might just get a heavenly result. 