Civil Procedure and the Old Testament

In search of dispute resolution ... What the Bible tells us about negotiation and arbitration ... Eve and the serpent - a failure to negotiate properly ... Catastrophic consequences ... King Solomon and the Commercial Arbitration Act ... Just, quick and cheap ... Eamonn Murphy and Ariana Haghighi escape from a dry tutorial 

One Tuesday morning, we sat in a banal tutorial. After weeks of adrenaline-fuelled trials in the Moot Court, and heated debate over the (in)adequacy of Commonwealth terrorism laws, we were to learn about the civil procedure of New South Wales. 

We lazed, bleary-eyed, as our tutor scrolled through the UCPR, all the codes and the guides, but the phrase "dispute resolution" piqued our interest. The intricacies of litigation, negotiation, mediation, arbitration, med-arb and arb-med came to light, and we began to have a Proustian recollection of our childhoods ... 

On the splintered pews of sandstone chapels, we listened as schoolchildren to the dramatic tales of the Holy Bible - the idyllic garden and its resident naturists one day, the threat of a bisected infant the next. 

The memory of those stories revealed itself, and we thought of the civil disputes central to their narratives: weren't they addressed in the same way that we settle modern legal disagreements? 

At once, the vicissitudes of LAWS1014 (Civil and Criminal Procedure) became indifferent to us and, for a bit of fun, we considered the Old Testament's processes of dispute resolution. 

Negotiation: Eve and the Serpent

The serpent fails to act in good faith ... © Pol Fotografie

The Bible's first dispute was not resolved with a quick, just and cheap approach. Where the serpent and Eve negotiated an agreement - that Eve shall eat from the tree of knowledge - man consequently fell from the garden, and into sin. 

We propose that, had these antediluvian parties followed contemporary principles of negotiation, our human nature might never have been irrevocably tainted.

In Justine Kirby's 1997 article for the Otago Law Review, she makes brief reference to Eve and the serpent as a prologue to her feminist dissection of Fisher and Ury's Getting to Yes: Negotiating Agreement Without Giving In. 

We seek to apply the Biblical tale to three precepts of Getting to Yes, which indicate that negotiation should: separate the people from the problem; focus on interests, not positions; and generate a variety of options before deciding what to do.

Entering negotiation, Eve and the serpent do not adopt open, communicative stances. As Genesis 3 begins, the serpent is characterised as "more crafty than any of the wild animals" - his mindset is not conducive to cooperative interaction. 

Where he claims that Eve will "not certainly die" by eating the tree's fruit, and that she will be "like God" in her resultant moral awareness, he deceptively manipulates her; he abrogates his obligation to act in good faith, and respect the other party with honesty. 

Though Eve's behaviour is hardly as sinister, she does not approach the proceedings with a willingness to understand the serpent's perspective. 

She merely defers to a higher authority, repeating the edicts that "God did say", and she does not ask the questions that might allow for an insight into what serpent seeks. The parties do not connect as people, and the negotiation stands on rocky ground.

A legal exegesis of the tale must then consider the parties' interests and positions. To her benefit, and as a healthy negotiation requires, Eve's interests are clear: to nourish herself and Adam; and to gain wisdom. 

Though she states her initial position - that she will not betray God - the negotiation does ultimately foreground Eve's desires and goals. 

The same cannot be said for the serpent. His position is that Eve eat the forbidden fruit, but his underlying interests are left tacit. We may impute a desire for anarchy, a sadistic wish that man fall into sin, yet the serpent articulates none of these interests. 

For a negotiation to succeed, parties must disclose what they want - clearly, this hasn't occurred in Genesis 3. 

Finally, where is the variety of creative solutions? The serpent's sole answer to Eve's interests is that she eat the fruit, and Eve does not even determine the Best Alternative to this Negotiated Agreement. 

We wonder whether Eve could have checked with God, and asked him whether her actions might bring about death. We suggest that Eve could have considered different routes to nourishment and wisdom: there was other fruit in the garden, and a few conversations with the local fauna might have increased her general knowledge. 

As the negotiation concludes, the extent of their failure is beyond apparent.

Our understanding is that because of poorly conducted negotiation, we were born into original sin and eternal suffering. The Biblical lesson, then, is that we should negotiate properly - when we do not, the consequences can be catastrophic.

Arbitration: King Solomon's Judgment

Solomon: the perfect arbitrator

If one approaches the Book of Kings, however, no such legal disaster can be found. Standing before two claimants, where each alleged maternity of the same infant, King Solomon acted as an archetypal arbitrator. 

Indeed, Solomon's arbitration skills were so effective that following his determination, all of Israel "held [him] in awe ... because he had the wisdom from God to administer justice". So, how did he do it? 

Let's consider the Commercial Arbitration Act NSW (2010), and the Australian Dispute Centre's Rules for Domestic Arbitration. According to our guidelines, arbitration requires: the selection of a neutral arbitrator; a hearing of the parties' issues; and a termination of the arbitration, through an award on the matter. 

We propose that Solomon largely adhered to these requirements, accomplishing a model arbitration.

To arbitrate an agreement, a person should be appropriately qualified and experienced, bearing no conflict of interest or bias towards a certain party. Clearly, King Solomon fulfils these requirements, and is a sufficiently independent and impartial arbitrator. 

Just before the arbitration, Solomon is given the ability to "discern justice". Solomon bears a "wise and understanding heart", and in God's eyes, he will judge disputes without peer. 

When it comes to the two harlots, Solomon is a completely independent figure: he is separated from them by multiple social strata, and has no personal investment in the dispute. Put simply, "the wisdom of God was in him to administer justice" - here, we find the perfect arbitrator.

As the hearing begins, the parties plead their positions. Where the two women come to Solomon in the throes of an argument, they notify him of the issue at hand: who is the infant's mother? 

They present their respective submissions - one mother argues that the living son is her own, while the other mother argues to the contrary. Since the hearing allows for the arbitrator to form observations to understand the evidence, Solomon diverges from the typical rules of admission in litigation: he instead acts creatively. 

Unable to access the technological gifts of DNA testing, he resorts to wielding a sword, and offers to slice the infant in half: he watches the mothers' reactions, and his observation thereby serves as evidence. 

Arbitration concludes with an award, where the arbitrator takes into consideration all documents, information and views presented. 

Solomon does exactly this. He considers the parties' initial submissions in conjunction with their reaction to the sword, and logically bases his judgement on compassion: a mother would hardly want her own son cleaved in two. 

His final award is clear, binding and given as soon as practicable - "she is his mother." The judgement is rendered, and justice administered - just, quick and cheap, exactly what the Civil Procedure Act craves.

We will concede that the arbitration is not beyond reproach: Solomon does not make orders for discovery, preventing him from relying on further evidence; and neither party calls for witnesses to support their claims. 

However, Solomon allows each party to properly state their claim, and impartially facilitates the proceedings. Since litigation's typical burden of proof (on the balance of probabilities) does not apply here, Solomon's evidence is beyond sufficient to make his determination. He has the wisdom of God on his side - who are we to judge?

We must revere this divine expert of dispute resolution. The Father of Arbitration, King Solomon, delivered the epitome of proper proceedings: a model arbitration for lawyers to pore over for generations.

To conclude ...

It is now a little while after that banal tutorial, and we are studying for a grisly exam. We flick through codes and guides, rules and regulations, but whenever negotiation and arbitration come up, we think of Eve and the serpent, Solomon and the harlots. 

We think of a negotiation that led to all sin. We think of an arbitration that remains a paragon of quick, cheap and just resolution. We think of how, when a textbook is dry and a tutor monotone, it's worth finding a way to escape.