Mr. Gross owned a large supply company. A dispute arose over a shipment of goods to one of his long-time clients, Mr. Kleiner, who ran a small store. Mr. Gross made numerous offers to settle the dispute, but Mr. Kleiner adamantly refused to pay anything, insisting that he bore no liability.
Mr. Gross had no choice but to sue Mr. Kleiner. The parties agreed to adjudicate before Rabbi Dayan’s beis din and presented their case.
On technical grounds, the halacha was in favor of Mr. Gross, although “common sense” justice was not necessarily so. In addition, Mr. Kleiner’s difficult financial situation made it hard to lay the law against him. The debated sum was significant for him but a drop in the bucket for Mr. Gross.
After the dayanim conferred, Rabbi Dayan called the litigants in. “By law, Mr. Gross is entitled to collect the full amount of his claim,” he said. “However, on account of Mr. Kleiner’s financial circumstances, we recommend that Mr. Gross be benevolent and compromise on half the amount.”
“Is financial status a reason to issue a ruling in his favor?” asked Mr. Gross. “The Torah states explicitly, ‘Do not favor the poor’ [Vayikra 19:15]. How can you do this? Furthermore, if I am entitled to the full amount, why should I forgo half?”
“As evident through the proceedings, Mr. Kleiner is in a delicate financial situation,” said Rabbi Dayan. “Demanding full payment is liable to drive him out of business. That is not in your best interest, either, as you lose a long-time customer.”
Mr. Gross’s advocate spoke up. “My client appreciates your concern, but this does not seem the role of the beis din,” he said. “We offered Mr. Kleiner ample opportunities for mediation and out-of-court settlements. If your verdict is that he is liable, how can you encourage us now to compromise?”
“You are correct that once the verdict has been issued, the dayanim cannot impose a compromise, even if the litigants initially authorized also compromise,” answered Rabbi Dayan. “That would be cheating the rightful party and an injustice. Some authorities write that doing so would be considered a taus b’dvar mishna, a mistrial, and the compromise is null and void. However, another person who is not a dayan can try to mediate even after the ruling has been issued; this should be done outside of beis din.” (C.M. and R’ Akiva Eiger 12:2)
“Nonetheless, the Shach [12:6] and Aruch Hashulchan [12:2] write that if the dayanim do not press the compromise upon the litigants, but rather explain the benefit of the compromise and persuade the litigants until they agree, they are allowed to do so,” continued Rabbi Dayan. “Others maintain, though, that the dayanim should not do so; this is the more prevalent practice” [Pischei Teshuvah 12:5].
“Nonetheless, some write that if the dayanim clearly state the ruling but nonetheless advise the rightful party to concede lifnim mishuras hadin [beyond the letter of the law], it is certainly permitted,” added Rabbi Dayan. “A story is told that the Chazon Ish ruled in a certain case and afterward said, ‘You are right, but exempt him.’ ”
“What if the dayanim haven’t issued the ruling, but already came to a halachic conclusion?” asked Mr. Kleiner.
“Tosfos and many other authorities maintain that once the dayan knows what the ruling is, he should no longer advocate compromise,” answered Rabbi Dayan. “However, the Shulchan Aruch rules that until the verdict is issued, the dayan can still advocate compromise. The Shach (12:4) supports this position, since it is a mitzvah to achieve a peaceful resolution, whereas Bach and Birkei Yosef write that one should follow Tosfos’s opinion. Rav Nissim Karelitz, shlita, is cited that until a decisive verdict is issued, compromise is still possible, since in most cases where a compromise is recommended the case is not clear cut and there remains room for doubt.” (Pischei Teshuvah 12:4; Mishpetai Tzedek, Tziun HaMishpat 12:65)