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Ancient Roots of ADR: A Brief Sketch of the Early History of Mediation

By: Ira Cohen, Esquire, Partner, Henkel & Cohen, P.A., Miami
Republished from The Resolver, Spring 2020

Quotation (Prolatio)

"The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried."

— Hon. Sandra Day O'Connor, Assoc. J., SCOTUS (1981-2006)

Preface (Praefatio)

Since the nascent days of civilization, man has warred upon his fellow man. Power wars. Political wars. Religious wars. Personal wars. Legal wars. When it comes to civil legal battles, certain societies, for a variety of sound and logical reasons, have attempted, with varying degrees of success, to lighten the load of, and take the pressure off, both the disputing parties and the formal law courts.

With the Ides of March soon upon us, what better time to speak of ancient Rome and related legal subjects?i Prior to Caesar's hasty, yet presaged, demise, the Ides of March was better known as the Romans' day to settle one's debts. How unfortunate that Caesar's enemies did not resort to mediation rather than take it into their own bloody hands to cancel Julius' societal debt and close his political and personal accounts forevermore.

Mediation, as a concept, and as a process, was something that the ancient Romans were well-versed in. For, despite all of its legal innovations and improvements, Rome did not invent mediation, but rather made it their own, implemented it, and, as many legal scholars and historians might argue, enhanced it.

So, dust off your old spectacles and take a gander at the famous symbol depicted below. What meaning does this rather familiar pictogram mean, suggest, or convey to you? Spoiler Alert: You may be surprised what it really relates to.

Frequently, the gold shepherd's staff, named "Caduceus," and which was gifted by Apollo to Hermes as a symbol of their friendship, inaccurately is utilized in connection with, and understood to pertain to, the healing and medical arts.ii As a matter of objective fact, the wing-topped stick, with two serpents entwined and intertwined thereon, may be observed in virtually all of the artistic statues dedicated to the god Hermes.iii In contrast, however, the medical profession's actual attribute, the "Rod of Asclepius," has only one snake and never is shown with wings.iv

Here are the two symbols shown in juxtaposition, for better clarity:

More importantly, for our present discussion, over the long centuries, this shepherd's staff has been seen to become a symbol of business and negotiation.v Some folks say that the two reptiles may be suggestive of the similarities and differences of the two main ADR modalities, namely, arbitration and mediation; in any event, according to legend, every disputant who touches the staff will settle.vi

Introduction (Praelocutio)

"An ounce of mediation is worth a pound of arbitration and a ton of litigation!"

— Mediator Joseph Grynbaum, P.E.vii

Mediation is one of the forms or modalities of modern Alternative Dispute Resolution ("ADR"). And, to somehow quantify Mediator Grynbaum's rather astute observation, mediation most assuredly consumes far less precious resources (i.e., effort, manpower, money, and time) than either arbitration or litigation.

On the spectrum of dispute resolution methodologies, we may pause to note that litigation is binding, nonvoluntary, nonconsensual, and adversarial. Arbitration, by way of contrast, may be fairly described as binding, nonvoluntary, consensual, and adversarial. Mediation, in stark contrast, may accurately be characterized as nonbinding, voluntary, consensual, and nonadversarial.

Mediators, for their part, are skilled individuals who employ a myriad of techniques to create or enhance a dialogue and rapport between disputing parties, with the ultimate goal of facilitating a mutually acceptable agreement. One thing that time has not changed: a great deal ultimately depends on the mediator's skill and training and, I would argue, personal charisma and gravitas.

In modern times, as the practice of extrajudicial efforts to resolve disputes has garnered popularity, we have witnessed the rise of training programs, certifications and, in some places, licensing, with the admirable result of turning out highly qualified, well-trained, professional mediators devoted to their craft.

Even the phrase "Alternative Dispute Resolution; or the acronym ''.A.DR;' which subsume negotiation, mediation, and certain new hybrid methods (e.g., "MedArb"), connote an alternative to the existing expanse of costly, bogged down, droning court procedures and processes. Thus, it should come as little or no surprise that, nowadays, many nations across the planet have turned to mediation and arbitration as an escape hatch from, or a safety valve for, the judicial system. For some nations, ADR was, or is, a virgin concept; for many countries, however, it is based on centuries, if not millennia, of tradition and gainful employment.

Mediation is an informal type of ADR modality wherein a neutral person—a mediator—serves to facilitate an agreement between the disputing parties. It is quite important to remember that the mediator is not a judge; they do not render a decision or impose any solution on the parties. A healthy and functional mediation environment allows the mediator, and the parties before them to identify and clarify critical issues, iron out the wrinkles of any misunderstandings, and ideally, to strive to work out a mutually acceptable settlement.

Abraham Lincoln, as it turns out, was a passionate advocate for ADR. In this oft-quoted passage, we gain a glimpse into Honest Abe's preference for peaceable solutions for parties embroiled in civil disputes:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, and expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

— Abraham Lincolnviii

Other earlier world luminaries were also devotees of ADR—the Greek philosopher and polymath Aristotle (384- 322 B.C.) and the celebrated Roman statesman, lawyer, and philosopher (Marcus Tullius) Cicero (106-43 B.C.), to name a couple. Mediation, then, has been used as a method of dispute resolution by a variety of cultures over a span of over 3,000 years.

Mediation is defined by Black's Law Dictionary as "[a] method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution."ix The roots of mediation can be traced back to antiquity, traversing not only time, but spanning the globe as well.

The etymology of the word "mediation" in the sense that we are speaking about, probably dates back to around the 14th century A.D.

Mediation

c. 1200, meditacioun, "contemplation; devout preoccupation; private devotions, prayer;' from Old French meditacion "thought, reflection, study;' and directly from Latin meditationem (nominative meditatio) "a thinking over, meditation;' noun of action from past-participle stem of meditari "to meditate, think over, reflect, consider;' from a frequentative form of PIE root *med- "take appropriate measures" Meaning "meditative discourse on a subject" is early 14c.; meaning "act of meditating, continuous calm thought upon some subject" is from late 14c. The Latin verb also had stronger senses: "plan, devise, practice, rehearse, studY."x

So, too, the words "mediator" (and the feminine form, "mediatrix") sprung forth sometime in the 14th century.

Mediator

mid-14c., mediatour, "one who intervenes between two parties (especially to seek to effect a reconciliation);' from Late Latin mediator "one who mediates;' agent noun from stem of mediare "to intervene, mediate;• also "to be or divide in the middle;' from Latin medius "middle" (from PIE root *medhyo- "middle"). Originally applied to Christ, who in Christian theology mediates between God and man. Meaning "one who intervenes between two disputing parties for the purpose of effecting reconciliation'' is first attested late 14c. Feminine form mediatrix (originally of the Virgin Mary) from c. 1400.xi

As alluded to, supra, the practice or process of mediation, however, was developed and employed long before the Middle Ages. This form of ADR has served many nations and many cultures for over three millennia.

The known history of mediation in the Western World, of course, has its most substantial foundations in Ancient Greece and, relatively shortly thereafter (in the overall scheme and timeline of the cosmos), in Ancient Rome.

The mediation practice that had been established and developed by the ancient Greeks was recognized as valuable and utilitarian by the Romans. Consequently, as with many Greek inventions and innovations scientific, mathematical, legal, and otherwise, the Roman Empire adopted it and embraced it. Moreover, as many Western legal systems have their roots in Roman law, it thus comes as no surprise that mediation still flourishes today in many nations.

Discussion (Sermo)

There are a wealth of recognized examples of the use of both mediation and arbitration, sister ADR modalities, in ancienttimes, to wit: 1800 B.C., ancient Mari Kingdom (today, Syria), use of mediation and arbitration-like processes in inter-kingdom disputes; 1400 B.C., ancient Egyptian Amarna, use of system of diplomacy for international relations; 1200- 900 B.C., Phoenicians, practice of entrepreneurship and negotiated outcomes; 500 B.C., India, use of arbitration process called Panchayar.xii

In ancient Israel, King Solomon's lauded {and biblically memorialized) judgment concerning the dispute between two women over rightful motherhood of a certain baby was handed down circa 960 B.C.xiii In that particular controversy, the King's show of Solomonic wisdom (to wit, threatening to cut the disputed baby in equal halves and award one half to each alleged "mother:' before the real mother pleaded only to save the life of the infant) is rightly viewed today by legal scholars as pertaining more to the arena of arbitration. No matter, there are plenty of other examples of mediation from man's early days.

Some scholars believe that the earliest example of mediation harkens back to ancient Sumerian society. Sumer, an ancient civilization in Mesopotamia, and one of the earliest known civilizations, existed from 4500-1900 B.C. Apparently, in the land of the Fertile Crescent, 'twixt the Tigris and Euphrates Rivers, before being brought to court for the hearing of a case, the case had to be heard by a so-called "mashkim"; the mashkim's role, like that of a mediator, was to assist the disputing parties in their efforts to resolve the dispute by themselves.xiv

That is not to say that there were no other, and perhaps even earlier, examples of mediation in antiquity. Historians posit that mediation techniques were used by both the Phoenicians and the Babylonians. There also are, for example, those who contend that Confucian China (Confucius lived from 551 B.C. to 479 B.C.) proved to be a bountiful land for mediation.

In China, the great philosopher Confucius had touted the superiority of mutual respect over confrontation and the superiority of law. "The best solution is the reconciliation of the parties involved; this, however, should not be imposed in any way, not even indirectly;' taught Confucius. Thus, in Chinese tradition and culture based on that Confucian ideal of natural harmony, melded with dispute resolution through ethical rather than any coerced methodology, mediation was looked to as the first choice for resolving disputes. As the great U.S. car magnate Henry Ford liked to say: "Do not find fault; find a remedy."

In broad brush strokes, Confucianism idealizes "harmony" throughout heaven and earth, beginning with the emperor and extending downward to the lowest level of society. Thus, the endgame of all human relations is to preserve naturaJ h armony. Therefore, "mediation had been the primary mode of dispute settlement for thousands of years in traditional China. Here is an explanation of how mediation worked in traditional China:

"Often, mediators had to shuttle between the parties, talking separately with them and with other persons having knowledge of the matter in an effort to reach a mutually satisfactory compromise... One observer described the process thus: First, the invited or self­ appointed village leaders come to the involved parties to find out the real issues at stake, and also to collect opinions from other villagers concerning the background of the matter. Then they evaluate the case according to their past experience and propose a solution. In bringing the two parties to accept the proposal, the peacemakers have to go back and forth until the opponents are willing to meet halfway. Then a formal party is held either in the village or in the market town, to which are invited the mediators, the village leaders, clan heads, and the heads of the two disputing families:xv

Sound familiar? Under the Confucian philosophy and ethics, adversarial proceedings would bedeemed the antithesis of harmony. Later, beginning with the Western Zhou Dynasty, about 2,000 years ago, an official post of mediator has been included in most governmental administrations.

Similarly, in Japan, historically speaking, reconciliation has been the paramount method of dispute resolution. In practice, reconciliation was conducted through intermediaries, namely country leaders, who functioned, in effect, as mediators. In modern Japan, a major focus of negotiations remains to create and preserve valued relationships.

From the dawn of recorded history, the concept of the mediator was steeped in tradition and sprang forth from the Greek mythology of old.xvi To illustrate, Mercury (Mercurius), the Roman god of commerce, often served as a mediator between gods and mortals.xvii Often associated with his Greek counterpart, Hermes, the Roman name Mercurius is thought to be derived from "merx," the Latin word for merchandise.xviii As mentioned above, Hermes frequently is shown holding the caduceus, a wand used to reconcile conflicts, as well as winged sandals designed to allow him to quickly convey messages to and from the Gods.

In the Western World, the precursors of dispute resolution may be exhumed by studying the Greeks of old. By far, the most well-known-tale (which, like-King Solomon's story, involved arbitration, as opposed to mediation) has been handed down to us by virtue of Greek myths and legends. You may well know the story of "The Judgment of Paris" by now; or, perhaps, you are familiar with the classic oil painting on the subject, painted by the great Dutch artist, Peter Paul Rubens (painted between 1636-1639), which may be viewed today in London's National Gallery.

As the legend goes, there was a dispute between the goddesses Juno, Athena, and Aphrodite as to which goddess was the ost beautiful. To settle this thorny issue of comparative pulchritude, the deities selected Paris, the royal shepherd, to arbitrate and render a binding decision. However, the fix was in! Tempted by a heavenly bribe, Paris picked Aphrodite, and announced her to be victorious. Not to be taken advantage of, Juno, the sister and spouse (yes, you read that right) of Jupiter, was Hades-bent on revenge. Consequently, she released a host of plagues on the hapless Aeneas, Paris' fellow Trojan (he who was written about in Homer's Iliad and Virgil's Aeneid), as the great hero strove to find the new Troy. Why poor Aeneas? Well, Aeneas was the son of Prince Anchises and, as you may have guessed, Aphrodite. And, as Paul Harvey used to say in his celebrated radio broadcasts for many decades, "[N]ow you know the rest of the story..."

Both Aristotle (384-322 B.C.) and, later, Cicero (106-43 B.C.) favorably described arbitration, making it dear that arbitration was an alternative to the courts. Aristotle said arbitration was introduced to "give equity its due weight, making possible a larger assessment of fairness;' while Cicero said a trial is "exact, clear-cut, and explicit, whereas arbitration is mild and moderate:' He added that a person going to court expects to win or lose; a person going to arbitration expects not to gain everything, but not to lose everything either. Good advice even for modern times.

Arbitration, however, transcended mythology for the ancient Greeks. As the law courts became crowded, the city­ state of Athens instituted the position of public arbitrator ca. 400 B.C.xix According to Aristotle, all men served this function during their 60th year, and they heard all manner of civil cases in which the disputing parties did not wish to go before the formal, and slower, court system. While the decision to take a case before an arbitrator was voluntary, the choice of being an arbitrator was not. Unless he happened to be holding another office or traveling abroad, any eligible man selected to serve as an arbitrator was required to do so; ifhe refused, he would lose his civil rights.xx

Historians and anthropologists are in general agreement that there existed arbitral and mediation customs and institutions in many different ancient cultures. The city-states of ancient Greece, for one, developed fairly elaborate arbitral procedures, for example, on occasion they organized groups of arbitrators similar to modern international tribunals.

Furthermore, the Greek procedures for arbitration were remarkably formal. The arbitrator for a given case was chosen by lottery. Akin to a mediator, his first duty was to attempt to resolve the matter amicably. In the event such efforts failed, the arbitrator then would call witnesses and require the submission of evidence in writing. Unlike most modern arbitration cases, there was an internal, arbitral appeal available, so that the case would be brought before the College of Arbitrators, which could, in turn, refer the case to the law courts.xxi

Mediation practice, though perhaps second class to arbitration, flourished as well. In the case of a dispute, short of the more formal (arbitration) and the most formal (litigation)—routes, one could choose to take no action (i.e., do nothing), seek a concession from the adversary, resort to self-help, seek a negotiated settlement, or try mediation (conciliation). In early Greece, village elders frequently were utilized to mediate disputes between villagers. A nonmarital mediator was known as a proxenetas.

Greek free citizens employed educated slaves (therapes) to assist them in negotiations by conveying confidential offers and counteroffers between the Greeks. On the island of Crete, an assisted and confidential negotiation scheme between families, called sasrnos, has been practiced since the 12th century B.C., and is used to prevent or settle vendettas (crimes committed in order to defend family honor, in accordance with ancient local customs). When a settlement is reached between two families involved in a sasmos process, with the assistance of a local mediator called a sastis, despite the informality of the process and lack of legal enforcement, the agreement is considered binding by the parties and the local community.xxii

These cultures, among others, regarded the mediator as a sacred figure, worthy of respect,xxiii As the great Roman poet Juvenal (55-127 A.D.) advised: "Esto bonus miles, tutor bonus, arbiter idem Integer (Be a good soldier, good guardian and arbiter the same of Integrity).xxiv In a sense, the role of the ancient mediator emulated, if not overlapped with, that of the tribal chieftain or leader or the traditional wise man in a tribal or clan setting.

Prior to the rise of the Roman Empire, the Etruscans (who did not speak Latin and who used a Greek-like alphabet) were in power in what is today Italy near Rome. Oscan speakers called their magistrate a "meddix" a word that may possibly be derived from the same root as "meditate" and "mediate".xxv

Subsequently, in the Rome of antiquity, there were mediations of lesser or greater formality. To be sure, there were "sponte delectos," persons chosen to be mediators, or arbitrators, from within the church and also on an ad hoc basis to settle disputes.xxvi

There also existed, in Roma Antigua, a certain degree of interplay between mediation and arbitration:

"In some ways the Romans anticipated our contemporary problems as well as our practice. On the surface, mediation seems not to have played the predominant role it did in Ancient Greece (citing to Roebuck, Ancient Greek Arbitration, "Best to Reconcile:• at 348-49). Yet there are clear preferences for it in family matters, 3.5. where the imperial official, having been appointed arbiter, is instructed to get the parties to settle. The documents preserved on papyrus give many examples of mediation within the arbitration process. Favorinus, the philosopher whose advice was sought by Aulus Gellius, 6.3, referred to a problem which modern arbitrators face, whether: "it is fit and proper for a judex... if there seems to be a chance to settle, to postpone his adjudicatory function for a while and play the part of a mutual friend and a kind of peacemaker'. Favorinus suggest no solution but the fact that he was not merely aware of the problem but gave it prominence shows that arbiters of his time were troubled by it. And that suggests that there was more mediation going on in their practice than just the natural urge of decision-makers to avoid adjudicating if they think they can get a consensus."xxvii

The concept of mediation most certainly also was known and well-regarded, even during biblical times. A mediator was a person who sought to intervene between two parties at odds with each other with the aim of reconciling their differences. Albeit the word is not to be found in the Old Testament, the idea it expresses may be found in Job 9:33 (i.e., the word "daysman'' (q.v.) "umpire").xxviii

Mediation also boasts not insignificant roots involved in the faith of Judaism and in the Christian churches.xxix For example, the Gospel of Matthew includes a procedure for dispute resolution in which the parties initially attempt to work through their dispute by way of discussion. Should they be unsuccessful, private mediation is utilized. (Following an unsuccessful mediation, the Bible prescribed that the parties' dispute be presented before public representatives.)

As for the New Testament, the word "mediator" is used to denote an internuncius, an ambassador, one who acts as a medium of communication between two contracting parties. In that vein, Moses is termed a mediator in Galatians 3:19 and Christ is the one and only mediator between God and man (Hebrews 8:6; 9:15; and 12:24).xxx Additionally, it may be noted that Paul directed the Corinthians to appoint people from their own community for the purpose of resolving disputes rather than submitting disputes to the court for resolution.xxxi

Subsequently, Roman civilization and Roman law (starting from Justinian's Digest of 530-533 CE) recorded the official use of mediation. The Romans called mediators by a wealth of different names, including, but not limited to: internuncios, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and mediator.

Conclusion (Conclusio)

Many often speak of mediation-one of the dispute resolution methods that can be described as assisted negotiation-as a modern-day development and improvement. However, even after a rather cursory examination-cifinenfstory and underpinning of mediation, we discover that many societies have long utilized and enjoyed the benefits of mediation practice.

Obviously, mediation has evolved, and the process has been adapted and refined to better fit and serve today's disputants. As Albert Einstein cogently pointed out: "In the middle of every difficulty lies opportunity:' In that vein, mediation essentially still serves the same purposes and main objectives as ever, namely, to offer a non-adversarial, quicker, cheaper, alternative to subjecting parties to the droning justice systems where even the hardiest of litigants can be ground down and chewed up by the ravages of time, aggravation, and astronomical lawyers' bills, not to mention the whims and caprices of both judges and juries.

Amici, advocatorum, additis collegis mandatum. Praebueris aures tuas.

Spero vos omnes ad inuendam FBA in Capitolio post Idus Martii.

Friends, lawyers, colleagues. Lend me your ears. I hope to see you all at the FBA reunion in the nation's capital after the Ides of March.

Endnotes (Vercellarum)

i Julius Caesar was assassinated on March 15th (i.e., the "Ides of March") in the year 44 B.C.

ii Martin Svatos, "Hermes and Apollo Dispute: When the Gods Arbitrate and Negotiate...", Kluwer Mediation Blog, July 22 2015, http://mediationblog.kluwerarbitration. com/2015/07 /22/hermes-and-apollo-dispute-when-the­ gods-arbitrate-and-negotiate/; retrieved Feb. 13, 2020.

iii Id.

iv Id.

v Id.

vi Id.

vii Quoted in Utah Mediation.corn's website, www. utahmediation.com. Mr. Grynbaum is associated with Mediation Resolution International, LLC and a contributing author at the Kluwer Mediation Blog. Retrieved on February 15, 2020.

viii Notes from a Law Lecture (July 1, 1850), Collected Works of Abraham Lincoln, Vol 2., https://quod.lib.umich. edu/l/lincoln/lincoln2/1:134.1rgn=div2;view=fulltext, retrieved Feb. 15, 2020.

ix Black's Law Dictionary. 1003 (8th Ed. 2004}.

x https://www.etymonline.com/word/mediation; retrieved Feb. 13, 2020.

xi https://www.etymonline.com/word/mediator; retrieved Feb. 13, 2020.

xii Jerome T. Barrett and Joseph Barrett, A History of Alternative Dispute Resolution, The Story of a Political, Social, and Cultural Movement, Chap. 1 and ADR Timeline, XXV (2004}.

xiii Id.

xiv Id.

xv A History of Alternative Dispute Resolution, supra, Chap. 1 and ADR Timeline, xxv.

xvi For an interesting and engaging look at ancient Greek mediation, see Gutierrez, Annalisa, The Seasons of Dispute Resolution: A Study of Mediation Tactics in the Context of ancient Greek Mythology, 6 American Journal of Mediation 1 (2012), http://www.americanjournalofmediation.com/docs/ ANALISA%20GUTIERREZ%20-%20The%20Seasons%20of%20ADR%20-%20A%20Study%20of%20Mediation%20 Tactics%20.%20.pdf. Retrieved on Feb. 15, 2020.

xvii A History of Alternative Dispute Resolution, supra, Chap 1 and ADR Time.ine, xxv.-

xviii Wasson, Donald L., Mercury (Deity), Ancient History Encyclopedia, Nov. 6, 2018, www.ancient.eu/Mercury_(Deity)/, retrieved Feb. 14, 2020.

xix H.C. Harrell, Public Arbitration in Athenian Law, University of Missouri Studies, a Quarterly of Research, Vol. XI, 5-7 (Jan. 1, 1936).

xx Id.

xxi Id.

xxii Weinstein International Foundation, www. https://weinsteininternational.org/greece/, retrieved on Feb. 14, 2020.

xxiii 1 Kings 3:16-28.

xxiv Juvenal, Satires, VIII, 79-80.

xxv D. Roebuck and B. Lyons de Fumichon, Roman Arbitration, 23, n. 3 (Oxford, 2004).

xxvi Id., at 154.

xxvii Roman Arbitration, supra, 199.

xxviii https://www.biblestudytools.com/dictionary/mediator/. Retrieved Feb. 14, 2020.

xxix Roman Arbitration, supra, 36.

xxx Id.

xxxi I Corinthinans 6:1-4.

 

About Henkel & Cohen

Henkel &Cohen, P.A. is a Miami, Florida boutique business litigation law firm whose partners hold the highest AV rating from Martindale-Hubbell®. For additional biographical and contact information, please visit the firm's website at www.miamibusinesslitigators.com.