Judge in Netanyahu trial said to ask sides to consider non-binding mediation

According to TV report, lawyers for the prime minister ‘did not rule out the idea,’ although those involved don’t consider it likely that an agreement can be easily reached

Benjamin Netanyahu arrives for a court hearing in his trial at the Jerusalem District Court on May 31, 2022. (Yonatan Sindel/ Flash90)
Benjamin Netanyahu arrives for a court hearing in his trial at the Jerusalem District Court on May 31, 2022. (Yonatan Sindel/ Flash90)

One of the three judges in the trial of Prime Minister Benjamin Netanyahu has reportedly asked the state prosecution and the defense teams to consider a non-binding “criminal mediation” process, in part because the proceedings are proving so protracted.

The trial began three years ago and, as things stand, the proceedings, including potential appeals, are seen as unlikely to end before 2028-2029.

According to a Channel 12 report, Jacques Chen, a lawyer for one of Netanyahu’s fellow defendants, the former Bezeq controlling shareholder Shaul Elovitz, suggested mediation for all defendants last week during a discussion before Judge Oded Shaham.

Lawyers for Netanyahu, who is on trial in three cases — facing one count of bribery and three counts of fraud and breach of trust — “did not rule out the idea,” the report said, and Judge Shaham asked the state to weigh the idea.

Attorney General Gali Baharav-Miara will therefore have to decide if she wants to pursue this option, and will need to make a decision “in the next few days,” according to the report, by leading journalist Ilana Dayan.

Chen raised the “surprising suggestion” of mediation when Shaham was holding behind-closed-doors discussions with the sides on trying to reduce the lengthy witness lists in the trial.

Netanyahu trial Judges Moshe Bar-Am, Rebecca Friedman-Feldman and Oded Shaham, L-R. (Justice Ministry)

Mediation is generally held before a serving judge (not one of the judges in the trial), who does not hear witnesses, and does not restart the trial, the report stressed. Rather, the judge tries to work toward what amounts to a potential plea bargain.

For instance, the report said, the judge could cancel the bribery charge against Netanyahu and convict him on fraud and breach of trust — a potential resolution reportedly considered when former attorney general Avichai Mandelblit held plea bargain contacts with Netanyahu’s lawyers in late 2021 to early 2022.

The mediator can also come up with “creative suggestions,” the report said, including on the matter of “moral turpitude” attached to a conviction, which could potentially bar Netanyahu from public office.

Boaz Ben Zur, Netanyahu’s lawyer in the most serious of the cases, Case 4000, which carries the bribery charge, told Shaham he was not ruling out the idea, and would give his response when the state does, the report said.

So, if the state agrees in principle to the process, without pre-conditions, said Dayan, “it is reasonable to believe that Netanyahu will come.”

Lawyers representing another defendant, Arnon Moses, are also in the picture and presumed ready to agree to mediation, according to the report.

Attorney General Gali Baharav-Miara at her inauguration ceremony in Jerusalem, February 8, 2022. (Yonatan Sindel/Flash90)

The report said the attorney general’s main problem would be “entering a process without clarifying the nature and extent of the gaps between the sides. It’s not a simple process. It would mean the process is not held in public.”

At the same time, resolving the case via mediation might constitute a means to “neutralize the detonator that is to some extent causing the storm around us in recent months,” the report said, referring to the Netanyahu government’s campaign to weaken the judiciary.

Even those who favor mediation, the report said, consider the chances of the sides agreeing to it, and it ending quickly and successfully, to be “not high,” especially given the bad blood and mistrust between the sides.

Furthermore, “each side can stop the process at any moment, and they do not have to accept the result,” the report said.

Still, it concluded, “the defense attorneys think it is worth the effort.” And thus the question, the report said, is whether the attorney-general agrees.

Attorney General Avichai Mandelblit at the press conference announcing his decision to make then-prime minister Benjamin Netanyahu stand trial, November 21, 2019. (Hadas Parush/Flash90)

In late 2021 and early 2022, Mandelblit and Netanyahu’s lawyers engaged in several weeks of talks toward a potential plea deal, during a period when Netanyahu was not in office.

While the potential for such an agreement had much of the nation on the edge of its seat, the negotiations eventually fell apart shortly before Mandelblit left office and was replaced by Baharav-Miara.

According to unconfirmed reports of the plea deal negotiations, Mandelblit was demanding that any plea deal with Netanyahu include a clause of “moral turpitude” — which would bar Netanyahu from public office for seven years. Some reports said that a period of just two years was also discussed in the plea bargain, and that Mandelblit backtracked after temporarily agreeing to this. In addition, the reports at the time said that other charges would be significantly lowered in two of the cases against the former premier, and dismissed in the third.

But in a statement following the collapse of the talks, Netanyahu said he would not agree to acknowledge “moral turpitude” as part of a potential plea bargain, and said he had no intention of leaving politics.

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