Turning Conflict into Resolution
Alternative Dispute Resolution (“ADR”) has been a parallel track to court systems for dispute resolution for centuries on end. Indigenous native Americans on occasion utilized modalities of ADR to settle inter-tribal controversies long prior to the time that the Colonists brought with them more formalistic legal processes from Europe. Colonial Massachusetts, for its part, enacted an arbitration law in the 1630s (predating even England's first arbitration statute by half a century). The Founding Fathers of our great, now 249-year-old country, at least initially, would have preferred to resolve their burgeoning dispute with England in an alternative manner.
Almost 3,000 years ago, King Solomon of Israel was one of the earliest proponents of ADR. Indeed, down to this very day, Solomon still is regarded as one of the most famous practitioners of dispute resolution. Born in Jerusalem in 990 BCE, as the royal successor to his father, King David, he was the King of Israel from 970 to 931 BCE. Solomon also has attributed to him the authorship of the Hebrew Bible's Books of Proverbs and Ecclesiastes.
As Jewish tradition reveals, when God asked Solomon if he wished to be given wisdom, wealth, or longevity, Solomon famously chose wisdom. As time passed, King Solomon was presented with a number of opportunities to utilize and apply his mental acuity and talent for sagacity.
Fast forward to the 16th-17th centuries. The incomparable Flemish Master, Peter Paul Rubens (1577-1640), a Baroque period phenomenon who, continuing down to our time, is recognized as one of the all-time greatest artists - the painting prodigy behind such epic works as "The Three Graces," "Assumption of the Virgin Mary," "Descent from the Cross," "The Fall of Man," "Massacre of the Innocents," "Lion Hunt," and "The Garden of Love," was the son of a former lawyer.2
Sir Peter Paul Rubens was, doubtless, a highly influential Flemish Baroque painter, diplomat, and scholar. Best known for his mythological and allegorical history paintings, portraits, and landscapes, his unique artistic style has been aptly described as a fusion of Renaissance art and realism, replete with lush brush strokes, all with a decided emphasis on color, movement, and sensuality.3
The prolific Rubens was a classically educated humanist scholar and successful diplomat; he was knighted by both King Philip IV of Spain and King Charles I of England. At present, Rubens' oeuvre is regarded to consist of in excess of 1,400 pieces, excluding the many copies of art produced in Rubens' workshop by his associates and assistants.
Aside from his mythological subjects (see, e.g., "Saturn," "Head of Medusa," "Prometheus Bound," "Sir George and the Dragon," Rubens depicted long-celebrated biblical scenes, such as "Samson and Delilah," David Slaying Goliath," "The Adoration of the Magi,” and “Daniel in the Lion's Den.”
Several of his works (multiple versions of one story from mythology and one version of a tale from the Bible) relate to the law and, more specifically, to the theme of Alternative Dispute Resolution, namely, "The Judgment of Paris" (1636-1639)4 and "The Judgment of Solomon" (1617).5
"The Judgment of Solomon" is a famous Rubens Baroque-style painting portraying the Old Testament story of King Solomon's wise judgment. In this masterwork, two women, both of whom claim to be the mother of a living child, are brought before Solomon in his royal court. In order to ascertain the identity of the actual birth mother, Solomon proposes to have the child sliced in half
by the blade of a sword, with each woman receiving an equal portion. Spoiler alert: The birth mother's horrified plea (shown by Rubens through her agonized, emotional facial gesture and body language) to spare the innocent baby serves to reveal her legitimacy and, at the same time, to reveal the liar and fraud.
The artistic interpretation by Rubens is highlighted by his sublime capture-on-canvas of the overarching high-wire tension of this nail-biting moment of maternal crisis and life and death drama. The oil painting features a lively composition with the women's starkly contrasting emotions on full display, namely: the hopelessness and despair of the real mother, juxtaposed against the feigned indifference of the fraudulent mother, not to mention the august and authoritative presence of the King.
Solomon (ben Dovid), born in Jerusalem, the son of King David and Queen Bathsheba, was the fourth monarch of the combined Kingdom of Israel and Judah. Also known as "Jedidiah" or "Schlomo," he was the successor of his father, David (yes, that David, the famous stone and slingshot slayer of the Philistine giant Goliath), who had ruled over all twelve of old Israel's tribes."
Considered to be a prophet by the Jewish people, Solomon has been portrayed as rich, powerful, and wise; more crucially, perhaps, he was considered a devoted adherent of Yahweh (God). The best evidence of his religious dedication, of course, was the eponymous Temple of Solomon (i.e., the First Temple) in Jerusalem. He has likewise been the poster boy of many legends and, albeit his historical existence is accepted, the degree of his kingdom's relative power, opulence, and wealth have been the legitimate subjects of scholarly debate.
Solomon apparently also is revered in Christianity and Islam. In the New Testament, King Solomon is portrayed as a teacher of wisdom. In the Koran (Quran), Solomon is a major Islamic prophet. In non-biblical environs, Solomon was deemed a magician and, so, jewelry and medallion seals dating from the Hellenistic period invoked his name and memory. Later, for the Freemasons, King Solomon's Temple served as a potent symbol for personal growth and the erection of a better world. Thus, the holy temple, as described in the Bible, is much more than a mere architectural edifice, but rather serves as a metaphor for the individual Mason's epic journey of self- improvement and attainment of enlightenment, all within the framework of Masonic degrees and masters.
We should not be at all surprised that King Solomon would be wise and just when it came to domestic relations and family affairs. It appears to have been in his genes as well. His regal pedigree was, in part, the result of the aftermath of the adulterous, scandalous, sinful, and murderous act of his father, King David, who desired -- and conspired...and [indirectly] killed Uriah the Hittite -- to make the latter's wife, Bathsheba his very own, not to mention his Queen. Subsequently, Solomon, although he had only three (3) recorded children (including his successor- son, King Rehoboam), he was reputed to have possessed seven hundred wives and three hundred concubines.
We commence our consideration of "The Judgment of Solomon" by noting that the biblical story is recounted in 1 Kings 3:16-28. (The entire biblical account is reproduced at the end of this article for ease of review and the reader's fullest comprehension and consideration.) This famous narrative involves two post-partem women, both prostitutes, both of whom lived in the same house, and both of whom had recently given birth. During the night, one woman (the younger one) rolled over on top of her baby and smothered it. Whilst one baby lived, one baby died; the conundrum arose when both women nevertheless claimed the surviving tot as their own.
To better understand the background and context, one needs also to be conversant with another biblical (Old Testament) reference to King Solomon. Earlier in Chapter 3 of 1 Kings, it is related that, in his gratitude for Solomon's one thousand burnt offerings' as and for a sacrifice, God appeared to Solomon, in a dream, and said, “Ask for whatever you want me to give you.
and As the story goes, in lieu thereof, Solomon rather modestly asked only for wisdom to govern to discern right from wrong.
In this celebrated case, in order for the ruler to determine the child's actual mother, King Solomon orders a sword to be brought to him. He then declares that the baby ought to be cut in half with each woman getting her portion. This was, in fact, only a ruse; a test of relative maternal instincts.
One woman (the younger one) readily agreed with the King's proposed resolution, whilst the other woman would rather have abandoned her claim to the babe-in-arms than see the child perish. The false mother declared that if she could not have the baby, neither woman should have it. The genuine mother then begged for the child's life and blurted out that she would rather have the newborn given to the other woman than be killed. In that manner, King Solomon thereupon knew that the woman who had selflessly placed the baby's welfare ahead of her own interests was, indeed, the real mother. In short, the King's test (a proof of Solomon's wisdom) worked like a charm. Speaking of Masons, Perry Mason, I think, would have been immensely proud of the king's shrewd tactic here.
The real mother, distraught and overcome with emotion, pleads with the King to let the child be given to the other woman in order to save its life. This selfless act reveals her to the King as the newborn's actual mother. The resolution is both just and fair. The helpless (though living) baby is returned to its birth mother without scratching a hair on its head. Notably, there is no mention of punishment for the one who had been parading around as if she were the mother.
The wise monarch duly declared the second (older) woman as the mother of the baby, as the real birth mother would even give up her baby if that were necessary to save its life, and the King, therefore, awarded her custody of the child. News of King Solomon's erudite “Judgment" quickly spread throughout the land, and it became known throughout all of Israel, being considered a prime example of wisdom in its most profound sense.
It is beyond debate that one of the main functions of the story at hand is to glorify King Solomon and extol his virtue of God-granted, unequaled wisdom. This is not an unimportant factor, in as much as Chapters 1 and 2 of 1 Kings paint a somewhat tarnished portrait of Solomon and Chapter 11 reports the King's sins in his old age (primarily, his seduction into idolatry by his foreign wives) and his eventual denouement. The story serves, then, to underscore the import of the divine wisdom that guides Solomon to reach the correct resolution of the case. The symbolic importance of unconditional maternal love and compassion also serve as important themes.
There are other undercurrents to the story that are worthy of, at least, passing mention. As is true with many other female characters mentioned in the Hebrew Bible, the two women in this story are anonymous. First, there was no desire to outshine the wisdom of the king on display which, after all, is the main point of the story. Second, the women are prostitutes and, thus, occupy one of the lower and marginalized echelons of society. Third, women of ill repute had no husbands or male patrons in what clearly was not a matriarchal society. Fourth, the women were impoverished and, fifth, they lived alone. Sixth, there appear to have been no witnesses to the pivotal event. Seventh, harlots typically were assumed to be sinful and selfish people. In short, the proverbial deck was stacked against them.
On the other hand, the womens' poor, lowly, and unenviable status provides the story with the opportunity to showcase the king's accessibility to all of his kingdom's subjects, as a protector of the weak and vulnerable of his land, and a voice to those who have no one to advocate on their behalf. Such pitiable individuals had only one protector, and only a single hope for justice, the King (here imbued with God's wisdom).
Notably, the narrator does not demean the women for their choice of livelihood. Similarly, there is no punishment for the losing party.
Despite the foregoing, by the end of the story, we understand that, in some sense, in the end, the light of the maternal compassion of both women shone through even the darkness of their dispute. Consider, for example, that the true mother showed compassion and devotion to her son and, to prove it, she was prepared to lose the child to the lying courtesan just to ensure that her child would live. For her part, the deceitful woman was fighting for the right to claim the living child because she was so emotionally distraught for having lost her own child; her strong maternal desire for a son, thus, compelled her to lie in a misguided attempt to steal the other woman's offspring.
Deeply examining the story, we may bifurcate it into a logical legal sequence. In the first part (lines 16-22), the case is described. I pause to note that we are not told how the case came before the king or which "hat" he was wearing in the matter.
Significantly, the two women introduce their own arguments. They have no representatives or advocates assisting them. Indeed, they are anonymous, as are many of the women in biblical tales. At this juncture, the Bible's narrator is silent and, similarly, the King registers no commentary... yet.
In the second part of the story (lines 23-28), the King's "decision" is described. Thus, most of the story is reported in this manner, by virtue of the contradictory testimony of the two women. In such a format, the underlying dispute is laid bare, and the conflict required to create drama is provided. The King's request for a sword to be brought to him only serves to heighten the ever- mounting tension. The reader wonders how the monarch will resolve this conundrum of the cradle.
Surprisingly, when King Solomon appears to give a regal command, which is to say, a decree to cut the child in half, some readers are, no doubt, given pause. Is this the best example of a wise ruling, one might inquire?
Then, in a sudden and unexpected twist that might make Rod Serling (of "The Twilight Zone" fame) envious, what, at first blush, appeared to be the king's judgment was not, in fact, a "verdict," but rather merely his investigative technique - some might call it a "trick" -designed to reveal the truth, namely, the birth mother and, in turn, the proper resolution of the case.
King Solomon's proposal to cleave the baby in two turned out to be a leftfield, if ingenious, solution that served to expose the falsifier and reveal the true mother. After all, we may safely hypothesize that the King's overriding objectives were: 1) to determine the actual mother; and 2) to guarantee the newborn's safety.
In order to achieve those laudable goals, Solomon's judgment required the monarch to possess a comprehensive understanding of the profound emotional bond that is shared by a mother and her child(ren). He may also have counted on his experience and skills as a father, as a husband, and as a family man. What he did also smacks of psychological and sociological awareness. Or was he just acting human and humane?
By the story's finale, King Solomon successfully has solved the riddle of the identity of the child's true mother. In the Hebrew text, though, the reader is not expressly notified of the puzzle's solution. King Solomon's command reads: "Give her the living child..." 1 Kings 3:27. One cannot infer whether the word "her" refers to the liar or the true mother, as the narrator remains close- lipped on the issue. Interestingly, we all tend to nod our heads in agreement and to conclude that the King chose wisely.
Let us now have a closer look at how King Solomon achieved this feat of wisdom. In barest summary, the King relied on the women's displayed reactions and own utterances in order to discover the truth. Solomon decreed that the infant should be given to the second (older) woman because her love for the child appeared to be selfless, whilst the first (younger) complaining woman's utterly selfish disregard for the child's health and welfare was, frankly, appalling.
One lesson that we may take away from the story is that, in the context of dispute resolution, the neutral must utilize and, sometimes, rely on a panoply of sources to arrive at a solution and, sometimes, those sources or tools utilized are not as initially anticipated.
Many commentators have opined that King Solomon's approach illustrates an archetypal example of an impartial judge displaying wisdom in making a ruling. Is that correct? Was Solomon the judge in the case? Query whether the inquiry properly ought to end there?
It is, truth be told, fascinating to observe that there are many ways to explain or interpret biblical stories. To be sure, different people can read the same exact text and come up with a vastly different explanation or perspective based upon their own understandings, biases, prejudices,
purposes, or agendas. In the context of arbitration and mediation, as in litigation, many times, the situation is not either black or white; rather, things may fall into the cracks, not fit well into the pegboard holes, inhabit the grey areas, or touch the very fringes of conduct and legal fabrics. In such cases, then neutral must be ever alert to envisage and invoke strategies that, at first blush, may be deemed unconventional.
In the story of the Judgment of Solomon, in what capacity was the King acting? Judge? King? Mediator? Arbitrator? The answer is by no means clear-cut. Rather, it is a highly nuanced inquiry and, in the final analysis, the answer depends, in considerable measure, upon one's prescience and perspective.
It should be understood that, even in Solomon's time, there was no shortage of law. The Mosaic law; the law of the Torah to be clear. Moreover, during his reign, there existed a judicial system in ancient Israel (both royal courts and local courts), while the high priests also played a role in certain legal matters. The women did not go to court; they went to Solomon.
We also might choose to look at Mosaic law for more context. We are familiar with the phrase "an eye for an eye." This phrase's origin is to be found in the Book of Exodus in the Bible and is understood as a principle of reciprocal justice. To be precise, it appears in Exodus 21:23-27, as well as Leviticus 24:19-22,9 and Deuteronomy 19:21. This Old Testament legal and juridical construct, also sometimes referred to as the "lex talionis" (law of retaliation), dictates that a person who injures another should be penalized to a similar degree. There is no indication in the story that Solomon considered putting the perjurer here to death. However, the king may well also have taken into consideration other Jewish religious laws or traditions in crafting his puzzle-solver. 10
Of course, it can be more than plausibly argued that Solomon was acting as a judge in this matter. He heard the matter. Each woman was afforded a full and fair opportunity to present her case. That is to say, he listened to the evidence. He then made a final and binding decision based on the evidence (i.e., the first-hand testimony) laid before him by the two disputants. Based on that, he then reasoned what the proper outcome or result ought to be and, then, he utilized his authority to enforce a resolving decision, to wit, returning the infant to its birth mother. To recapitulate, he heard the case; he made a ruling; he had the authority to issue the decision; and he had the power to enforce his "judgment."
Notwithstanding the foregoing, it is noteworthy, however, that there is no suggestion that the women were commanded to appear before Solomon. No judicial compulsion or sanction was involved. Rather, they appear to have brought the dispute to him. They, at least impliedly, agreed to the King's jurisdiction, venue, and competence to hear the case. That more closely suggests a role akin to an arbitrator, does it not?
Arbitration, as we know, contemplates a neutral third party making a binding decision after hearing evidence. The approach used by Solomon was, in some respects, similar to the investigative steps sometimes taken in arbitration. On the other hand, he did deliver a judgment (though not written) and made certain that the baby was returned to his rightful mother, thereby demonstrating the actions of a judicial decision-maker.
While Solomon's actions could also be compared by some to an interim award in arbitration, the king's role ultimately seems to have been that of a jurist, and not an arbitrator. Solomon's feigned "threat" to split the baby was, as discussed above, an investigative step and not really a decree. Nevertheless, insasmuch as King Solomon held the coercive power of his office, one thing arbitrators lack. We can surely agree that an arbitrator is not a judge, much less a monarch. An arbitrator is mutually appointed by the parties (as does seem to be the case here) to deal fairly between the parties (also true), but the question remains whether a modern arbitrator ought to ever seek "to play King Solomon.'
Pigeon-holing King Solomon as a mediator seems to be the least likely of the choices. In a mediation session, a neutral third party serves to facilitate a frank and full discussion and, based thereupon, crafts a settlement agreement by and between the parties. However, to be clear, the mediator does not impose a solution on the parties. Whilst King Solomon's "splitting the baby" trick could possibly be seen as a form of mediation in that it led to the true mother being revealed, would it not be more accurate, then, to state that by that artifice, he was able to draw back the curtain and expose the truth of what had transpired in that house as between the two women and their respective offspring. We all understand that the critical difference is that a mediator simply would not be invested with the power to force any solution on the two women, let alone order the return of the baby to one side as opposed to the other.
We may also theorize that had this been a mediation, given the brief biblical text we have been reading, the result may well have been that the mediator might have recommended that the child be given to the prevaricating woman. I can envision no scenario under which either an arbitrator or a mediator would decide to "destroy" the subject of the case.
Without deciding the issue, it seems fair to state that the methodology employed by King Solomon in this matter was neither typical of arbitration nor mediation. Albeit the mediator's function is to facilitate a discussion for the parties to reach a mutually agreed accord, while an arbitrator serves to render a binding decision after hearing both sides, in stark contrast, King Solomon's wisely selected tact was to formulate an emotional/psychological test designed to reveal the truth by an emotive display of maternal love and devotion.
It has been advocated that many readers of this Bible story have not accurately divined its meaning. It is not logical to think that Solomon did not know that by ordering the baby to be divided into two by the blade of a sword, he was condemning it. To his credit, the King did not split the baby, nor did he ever harbor any real intention to kill the child insofar as I can see.
Rather, the story relates to how the wise King Solomon employed his intuition and wits in a most ingenious and, indeed, cunning fashion so as to coax a liar into exposing herself and her lie and, thereby, returning the child to its true mother. Thus, to some academics, the story only tangentially touches upon judging, arbitrating, or mediating. Instead, it really speaks to a manner of ferreting out the truth, whereby the King was able to out the imposter and pretender to motherhood.
In tackling this thorny problem, King Solomon used what might be described as a provisional judgment to determine the identity of and grant custody to the biological mother.
Henceforth, "Solomonic Judgments" ordinarily have been understood as a "split-the-baby" or provisional approach. In that sense, Solomonic or compromise judgments tend to reject a so-called "winner-takes-all" approach.
Put another way, the expression "splitting the baby" or "cutting the baby in half" sometimes is used in our learned profession in order to represent a type of basic compromise; these are, then, solutions that "split the difference" in terms of awards of damages if not other types of remedies. The well-known, time-worn phrase or idiom of "splitting the baby," then, typically refers to a compromise situation wherein both sides in a particular dispute end up partially unhappy, dissatisfied, disadvantaged, or prejudiced, as opposed to a true resolution.
Let us be crystal clear. That sort of outcome may not be a true, agreed, mutual resolution. It can be thought of as less than ideal. This idiom is derived from the biblical story of King Solomon here under consideration. But, is it not less than ideal? What was the flaw in Solomon's solution, if any?
Doubtless, in other instances, practitioners and legal scholars may utter the phrase "split the baby" so as to refer to a compromise or ruling in which both sides somehow can lay claim to at least a partial victory. Allow me to observe that such usage seems to run afoul of the biblical narrative of the story. That is primarily because, in this instance, King Solomon's resolution of the riddle did not actually incorporate the division of the baby or finding a compromise between the women. Instead, the King secured the way to evidence that, indeed, cleared the path to a decisive victory for only one of the claiming mothers. Certainly, the King did not compromise with the truth.
We may be able to concur that such a split-baby approach does not always lead to a mutually agreed or satisfactory resolution. Indeed, there are those counselors who would sorely complain about jurists who decide a case where the decision does little more than equally divide the difference betwixt the parties' respective attitudes. Needless to say, grievances about "splitting the baby"-splitters" tend to be the most Stentorian in situations wherein a defendant verily believes that no money, property, or res be awarded to the other side at all.
During the course of mediation, it is the parties that are in control of the outcome. Wearing the hat of a mediator, one assists in the negotiations and, over time and travail, aims to reduce the schism between the disputants so that, when all is said and done, the parties can put their dispute to bed.
In some instances, there may be an appropriate time "to split the baby." For example, if the gap in the parties' previously negotiated positions has been narrowed sufficiently, they may well agree to split the difference. It may be that this approach is more harmonious in monetary disputes. On some occasions, a matter may be resolved not at the midway mark, but rather at some not-so- distant point, so as to avoid, at least for the parties' sake, the appearance of a split-the-baby result. At other times, the mediator, by virtue of a so-called "Mediator's Proposal" can propose a result and it is accepted (like King Solomon's ploy), but that does not inevitably involve a 50-50 division. In the end, however, it does successfully resolve the dispute once and for all.
What about an arbitrator? Should, or could, an arbitrator copy what Solomon did in this legendary bible story? We ought to feel confident in positing that no arbitrator could, or would, threaten to, or actually, split the baby. Destruction of the subject of the dispute, the res (whether person, money, thing, or baby) hardly commends itself as a very clever, logical, or practical resolution of the controversy.
Aldous Huxley (1894-1963) observed "[t]hat men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach." If we examine the story of the Judgment of Solomon with an open mind, and a discerning eye, the account of the legendary king's wisdom ought to stand as a timeless sentinel and fertile source of legal inspiration to the legal community, writ large and, in particular to the field of ADR practitioners. Far beyond its biblical genesis and religious undertones, the story can serve as a teachable moment for legal professionals engaged in ADR related pursuits.
In the giant technicolor patch quilt of biblical stories, this tale holds the key to some of the seminal lessons that can illuminate our understanding, and increase the effectiveness, and success rate, of efficacious ADR. Stated otherwise, if we engage ourselves, and invest our time, on the story of Solomon's sagacity in decision-making, some of the most important paths to becoming an effective mediator or arbitrator may reveal themselves to us like the ancient clues of an Indiana Jones series movie.
What sort of lessons can we detect and derive from count on from the mosaic of themes highlighted in the Judgment of Solomon; that is to say, what are some concrete practical takeaways for modern ADR practitioners? I offer hereinbelow the following non-exhaustive list:
Avoid harm to the parties.
Avoid destruction of the subject matter or res.
Address the concerns of all parties.
Address root causes or problems underlying the dispute.
Being a creative problem-solver
Determine the truth of the matter.
Evince wisdom.
Envision things and problems under the surface.
Focus on common denominators and interests.
Foster a compromising environment.
Guide parties away from destructive conduct.
Having an understanding heart.
Lay groundwork for cooperative problem-solving
Let the greater good be a relevant, but not the only guiding principle.
Look beyond the four corners of the papers.
Maintain an open mind.
Know well all of the underlying circumstances, details, and facts.
Navigate both the simple and complex issues admirably. Preserve, to the extent possible, the parties' relationships. Promote clarity and comprehensiveness.
Promote long-term healing.
Reduce the overall temperature of the dispute.
Respect shared goals and objectives of the parties.
Restore relationships if and whenever possible.
See the dispute from all sides and get the parties to do the same.
Show and promote empathy for the parties.
Steer discussions that benefit all involved parties.
The resolution should stand the test of time.
Think "out-of-the-box."
Try to focus on the greater good.
Use a discerning eye.
Understand the underlying, nuanced, and peripheral issues. Willingness to explore alternative resolution scenarios.
King Solomon modestly attributed his wisdom to God as the font spring. "For the Lord gives wisdom; from his mouth come knowledge and understanding." Proverbs 2:6. The foregoing verse strongly suggests that wisdom, knowledge, and understanding are not merely attainable human accomplishments, but rather divine gifts from God in Heaven. However, by studying Solomon's Judgment, as well as his life and works, all ADR practitioners can learn a thing or two.
