In lieu of an abstract, here is a brief excerpt of the content:

6 Mediation and Arbitration: Past and Future My joy was boundless. I had learnt the true practice of law . . . to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder.1 The great Indian civil rights leader Mohandas K. (Mahatma) Gandhi practiced law in South Africa around the start of the twentieth century. Once, while preparing a case, he realized that the facts strongly favored his client. However, Gandhi knew that if litigation were carried through, it would ruin both the client and his opponent. As the case progressed, legal fees and mutual ill will began to mount, and the time and energy the two parties had to spend on the case left little time for other matters. Because he felt it his duty to befriend and bring the parties together, Gandhi advised his client’s opponent to obtain counsel and to consider submitting the case to arbitration. In suggesting this, he identified less with the role of Lawyer than with his personal morality. The parties did agree to arbitration, and Gandhi’s client won handsomely. However, the arbitration award was so large that the losing party could not pay the entire amount without going bankrupt, and in the particular culture of his South African group, death was considered preferable to bankruptcy. After some effort, Gandhi persuaded his client to accept long-term installment payments, and “both were happy over the result, and both rose in the public estimation.”2 Gandhi then realized that one of the most important accomplishments of a lawyer was to “unite parties riven asunder,” a succinct rationale for the use of a gentler means of settling disputes through alternatives to litigation. Like Gandhi, a Quaker lawyer wrote, “It is my hope that all lawyers, not just us few Quaker ones, are seeing how much more successful we can be for our clients if we see our role as solving problems of clients rather than just acting as their ‘hired gun’ to seek some short-term gain through litigation. Negotiation [and] mediation (and even some of the expedited litigation methods) all have their place as alternatives to confrontational litigation.” Early Friends thought similarly. 177 178 Friends at the Bar Mediation and Arbitration as Quaker Gospel Order The early fundamentals of Friends’ communitarian justice derived from the New Testament. Matthew’s caution against going to law3 was the genesis of Quaker “gospel order,” a gentle means of resolving disputes and reuniting members. In his epistles, Paul too warned against suing.4 The maintenance, or restoration, of peace and harmony was important to Friends, and as early as 1659 English Quaker Edward Burrough had advised that Friends settle differences “not in the way of the world by hot contests, [and] by seeking to outspeak or overreach one another in discourse.”5 In addition to a scriptural impetus for gospel order, the Society, with its early history of persecution in England, naturally wanted to keep any differences within its confines so that the truth did not suffer because of a member’s deviant behavior.6 Not long after Burrough’s caution, Friends developed a comprehensive intra-Quaker dispute resolution process outside the courts to which aggrieved members could bring their “differences.” By 1679 the London Six Weeks Meeting had already established a permanent arbitration committee to deal with a wide range of intra-Quaker disputes, including those of a commercial nature.7 In 1681 George Fox described the skeletal framework of the process in his Epistles and Advices to Birmingham Meeting: “If there happen any difference between friends and friends of any matter, if it cannot be ended before the general meeting, let half a dozen of friends from the general meeting be, once in every quarter of the year, appointed in such places as may be convenient for most friends to meet in.”8 In that same year Friends introduced gospel order to Pennsylvania and West New Jersey in the New World where its primary value lay in the promotion of harmony and community. There, the principles of gospel order were articulated in a Philadelphia Yearly Meeting minute of August 28, 1681. A Friend was not to sue another Friend without necessity and without the consent of the meeting. Burlington Monthly Meeting issued a similar Advice that year, echoing the passage in Matthew: “if anything fall [sic] out, by way of controversy, between Friend and Friend, that if they...

Share