פשרה - Compromise

(13) Pick from each of your tribes men who are wise, discerning, and experienced, and I will appoint them as your heads.”

(16) I charged your magistrates at that time as follows, “Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger. (17) You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is God’s. And any matter that is too difficult for you, you shall bring to me and I will hear it.”

Once the verdict of the judgment has been issued, it is not permitted for you to mediate a dispute. The Gemara presents a mnemonic device alluding to the names of tanna’im in the coming discussion: Samekh, reish, mem, shin; beit, nun, kuf, shin. The Tosefta cites several statements of tanna’im related to compromise and the term botze’a. Rabbi Eliezer, son of Rabbi Yosei HaGelili, says: It is prohibited to mediate a dispute; and anyone who mediates [habotze’a] a dispute is a sinner; and anyone who blesses the mediator is cursing God. And of this, it is stated: “And the covetous [botze’a] blesses himself, though he despises the Lord” (Psalms 10:3). Rather, the judge must assure that the true judgment will prevail at all costs and metaphorically pierce the mountain, as it is stated: “For the judgment is God’s” (Deuteronomy 1:17). And similarly, Moses would say: Let the judgment pierce the mountain. But by contrast, Aaron, whose role was not that of a judge, was a lover of peace and a pursuer of peace, and he would apply peace between one person and the other, as it is stated: “The law of truth was in his mouth, and unrighteousness was not found in his lips; he walked with Me in peace and uprightness, and turned many away from iniquity” (Malachi 2:6). ...

Rabbi Yehoshua ben Korḥa says: It is a mitzva to mediate a dispute, as it is stated: “Execute the judgment of truth and peace in your gates” (Zechariah 8:16). Is it not that in the place where there is strict judgment there is no true peace, and in a place where there is true peace, there is no strict judgment? Rather, which is the judgment that has peace within it? You must say: This is mediation, as both sides are satisfied with the result.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....

Rabbi Shimon ben Menasya says: If two litigants come before you for a judgment, before you hear their respective statements and claims; or after you hear their statements but you do not yet know where the judgment is leaning, meaning that it is not yet clear to the judge which party is in the right, you are permitted to say to them: Go out and mediate. But after you hear their statements and you know where the judgment is leaning, you are not permitted to say to them: Go out and mediate, as it is stated: “The beginning of strife is as when one releases water; therefore leave off contention before the quarrel breaks out” (Proverbs 17:14). Rabbi Shimon ben Menasya interprets the verse to mean: Before the resolution of the contention is revealed, you can cast it off. Once the resolution of the contention is revealed, you cannot cast it off.And Reish Lakish says: If two litigants come for a judgment, and one is flexible and agreeable and one is rigid and contentious, before you hear their respective statements, or after you hear their statements but you do not yet know where the judgment is leaning, it is permitted for you to say to them: I will not submit to your request to judge you. The judge may refuse the case out of fear that perhaps the strong and contentious one will be found liable, and it will turn out that the strong one will pursue the judge with intent to harm him. But once you hear their statements and you know where the judgment is leaning, you may not say to them: I will not submit to your request to judge you, as it is stated: “You shall not be afraid before any man” (Deuteronomy 1:17). ...

He means that it is a mitzva to say to them: Do you want a strict judgment, or do you want a compromise? The Gemara objects: Since this opinion is the same as that of the first tanna, who also allows compromise, it is redundant to teach it. The Gemara answers: There is a difference between them with regard to the question of whether it is a mitzva to arrange a compromise. Rabbi Yehoshua ben Korḥa holds that it is a mitzva to offer them the option of compromise, and the first tanna holds that it is merely permitted.

(4) It is a Mitzvah to tell the parties at the beginning 'do you want Din (strict justice), or Pesharah (arbitration)?' If they want Pesharah, we seek out a compromise for them. A court that always does Pesharah is praiseworthy. Of them the verse says, “A just peace was made in your gates.” What kind of peace is also justice? We must conclude that this is Pesharah. As it is stated regarding King David, “And David made justice and righteousness to the nation.” What is the justice that has with it righteousness? We must conclude that it is arbitration. This is before the verdict, even if you heard their words and know which way the verdict leans. Once the case finished, and he said “Ploni, you are innocent, and Almoni, you are liable,” you may not do Pesharah, rather, let the Din pierce the mountain.

2. Its a mitzva for a judge to begin with meidation, he should ask them, what do you prefer, mediation or [strict] judgment.

3. Even if the has already heard their claims and he knows to which direction the judment is leaning, as long as the judgment has not been finalized in the fashion of "a is aquited and b is liable". However, after the judgment was finalized he can no longer offer mediation. If, however, there was an oath between them the judge is allowed to offer midation (compromise) even after the judge was ruled, to prevent the punishment that comes with swearing.

4. Any judge that always mediates is praise-worthy and on him is the verse "truth and peaceful justice were rules in your gates" what is legal ruling that includes peace- that is compromise.

5. Just like a judge is warned not to lean his judgment towards one party, so too, he is warned to not mediate or compromise to one of the parties more than the other.

(11) Faithfulness and truth meet; justice and well-being kiss.

Justice and peace: The defnition of justice (zedek) is that its stand in the middle ground between law and charity (chesed). Payments which are strictly regimented to the exact requirements is "truth" (emet) that is law. Whereas justice differs from law in that is doesn't always reflect the precise legal rules, instead it goes beyond the letter of the law. That is the area between truth (emet) which is the equilevant of exact law and complete charity. Justice is charity mixed with law. When tzedek joins together chesed and emet, which made up of emet (truth) and din (law), which is made up of charity and going beyond the letter of the law. We have already explained, that the charity that Hashem does is based on emet which is action, which by force, causes him to speak peace to his nation and to his faithful ones. Meaning to say, that he will watch over and ensure the recipient of charity will survive, and will falter from the pillar that charity leans on. That is to hope he will not lead him to sin, as is written [in Tehillim 85:8] "they will not return to folly". Based on all of this, [Tehillim 85:11] "justice and peace embraced" when charity and truth meet justice results from on high, to the feet of charity which comes from there. Peace will come from below to the feet of truth which goes up from down low to up high, and together they embrace.