Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today


by Joe Markowitz
January 2011

From Joe Markowitz's Mediation's Place Blog

Joe Markowitz
When we meet Orestes at the beginning of the second play in Aeschylus's trilogy, Choephori (The Libation Bearers)(for the first post in this series, click here), he is at his father's grave, gathering his courage "to do what must be done."   Once he gets to the palace, in disguise, Orestes doesn't hesitate to kill Aegisthus, who has usurped his father's throne, and taken up with his mother.  But killing his own mother is a bit more difficult for him.  After finding that Aegisthus has been murdered, Clytemnestra confronts her son, laying the full guilt treatment on him.  First she reminds him that she gave him life.
Orestes, my child!  Don't point at me with your sword.
See these breasts that fed you when you were helpless.
These were your first pillows when you were helpless.
Orestes hesitates, asking whether a man can perform anything more dreadful than killing his own mother.  Clytemnestra then begs for her life, and attempts to justify killing her husband by claiming she was in the hands of fate.  Orestes cannot win.  He knows he will be cursed by his mother if he succeeds, and cursed by his father if he fails.  Finally, obeying the hand of fate, he strikes his mother down. The chorus cries out
A two-headed monster of guilt--
But we must mourn them.
Our prince has put a crown of blood
On the terrible past
At his own cost
But at least he has given life to the hope of Argos. 
After the murders, Orestes tries to justify his actions.  As to Aegisthus, he says he bears no guilt: "On him I merely exacted the law that condemns adulterers."  But what about killing his own mother?  Though  he tries to justify that act also, he knows this second murder will continue to torment him.  He sees the Furies rising up after him, and must flee, even though the chorus tells him these are hallucinations and he has nothing to fear.

Ancient law demanded an eye for an eye, an endless series of revenge killings that perpetuated a vicious cycle of violence.  Orestes knows that the Furies are not interested in any extenuating circumstances, but despairs of whether he will find a fair venue to plead his case.  But even today, the law's remedies don't always address the parties' root problems.  In part that may be because the law's tools are not always sophisticated enough to probe beneath the surface.  The courtroom has trouble accommodating more than what we can see and hear.  Even when we may need to decide whether someone acted intentionally, we still usually don't have to understand precisely what is going through their minds.  The law might even rule some questions about motivations to be inadmissible speculation.  Ultimately, however, juries are still interested in finding out what is really going on. Guilt, fear, pride, regret, jealousy, greed, love, hate: these motivations often drive our actions; we need to understand these emotions to make sense of the story.

I mediated a case not too long ago which might not even have been brought except that the plaintiffs had borrowed from their parents the money they had invested with the defendants.  Their inability to recover the money so far and pay it back filled them with shame and guilt.  The legal system, however, was only concerned with the terms of the contract they entered into, and whether the defendant had breached it.  The rules of evidence might not even allow the plaintiffs to explain in court what was driving the lawsuit, and causing them the most anguish.

Several years ago, I tried a case involving a family business, always a fertile ground for Greek or Shakespearean tragedy.  A father had left the business to his sons, one of whom had allegedly forced the other one out.  Ostensibly, the case involved compliance with the corporate by-laws and shareholders' agreement, unfair competition and similar issues.  What the jury seemed interested in, however, was whether the parties had fulfilled their father's wishes.

Before I started my own law firm, I was a partner in a dissolving firm that had to resolve a number of difficult issues among the remaining partners.  It seemed that every time we had to consult our very detailed and comprehensive partnership agreement to find a solution to these issues, the solution did not seem satisfactory to us.  Instead we solicited input from everyone, talked it out, and resolved all of the issues by a new agreement.  In all these cases, the law seemed a crude tool that could not satisfy the parties' needs, but the parties still needed to find a way within the system to reach a satisfactory result.

At the beginning of this play, Orestes's sister Electra also seems to be searching for a more sophisticated form of justice.  She asks what she should pray for.  When the chorus answers, "justice," she seems unsure whether there is a difference between justice and vengeance.  Electra says she wants  "[t]o judge, to convict, to condemn."  The chorus reminds her that the gods may only be able to provide retribution.  "To kill!  Blood for blood.  Pray for that."  Electra seems unsure that that is what she wants for her mother.  Nevertheless, she stands with Orestes praying for justice against her father's killers, and accepts him as the instrument of that justice.  Presumably she does not want him to pay the same terrible price that he is making their mother pay.  Can the law do better than retribution?  Can Orestes escape the Furies?  Find out in the next installment.


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   

Email Author
Author Website

Additional articles by Joe Markowitz