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Prevent a Strikeout: Save the Two State Solution using 'Baseball Arbitration''

The immediate reaction is a sigh of relief: Shaul Mofaz lost his bid for leadership of the Kadima party, and lost big; Tzipi Livni defeated him convincingly. "No" to bellicose Mofaz, "yes" to sometimes pacific Livni.

But it's not Livni's pre-election hawkishness that prompts a sigh that's on the shallow side. The reason for that is that the gathering momentum in the Palestinian community is for a binational state - that is, for a "one state" solution.

That handwriting has been on the wall for some time, but it is no longer in faded gray. It is in bold type. Soon enough, it will be surrounded by flashing neon lights.

And the Israeli system does not seem anywhere near being able to deal with this new trend. The system has just about no capacity to move with dispatch towards a two-state solution. Indeed, it is Israel's muddled politics and badly divided polity that have over the years postponed, delayed, stymied an adequate response to the two-state proponents among the Palestinians. Now, according to all reports, those proponents are dispirited, persuaded that Israel lacks the seriousness or the determination a two-state solution requires. [See, for example, the Reut Institute Report. That is very much in keeping with my own impressions after meeting with Palestinian leaders in Ramallah last June.

What, then, to do? A bi-national state means an end to the Zionist project. Or, if you prefer more neutral language, it means an end to the Jewish state. No matter the guarantees of Jewish safety that such a state might offer, it would surely occasion the mass flight of Jews from the region. Nor is it conceivable that it would be free of deadly violence.

Accordingly, I return here to a proposal I have put forward before - to which there were no takers. There will likely be none, or very few, this time around. But muddling through seems an increasingly fruitless a "strategy."

Let us imagine: The world tires of the Israel/Palestine conflict and despairs of the parties' capacity to resolve the conflict. Yet it fears the potential explosive consequences of the conflict. So it - and "it" here must mean centrally the United States, the E.U. and, perhaps, several of the Arab states - decides to intervene.

But a resolution imposed by others will not hold, hence will not be put forward. There are no others sufficiently trusted by both sides to be accepted as arbitrators, nor is there any other prepared to invest the kind of muscle that would be required for an imposition by force.

The intervention here proposed builds on the widely shared view that both key parties already know, at least roughly, the shape of the final settlement. Surely by now they have identified all the issues that must be resolved and are aware of the gaps that remain. What then of what is known as "pendulum arbitration?"

Pendulum arbitration, also known as "baseball arbitration," is a form of arbitration whereby both sides to a dispute prepare proposals for the resolution of the dispute and the arbitrator selects one or the other of the two proposals as is. Unlike conventional arbitration, the arbitrator does not seek to reconcile outstanding differences.

In the case at hand, the difficulty would obviously be in persuading the parties to accept, in advance, a resolution which might violate their fundamental beliefs or commitments. But the fact is that such a prospect is rendered exceedingly remote by the process itself.

Knowing, as they do, in advance that they must develop a proposed resolution that the arbitrator thinks reasonable, each side is pressed to be as moderate as possible. The Israelis know, for example, that an otherwise reasonable proposal that bars any Palestinian sovereignty in Jerusalem is, other things being equal, certain to be rejected by the arbitrator. The Palestinians, for their part, know that a full claim to the right of return will fail. Hence each is moved to shave its demands and conditions, to shave them, in fact, to a minimum - in effect, to sweeten its proposal.

Under other circumstances, even that might be too great a risk for either party to accept. But the key circumstance here is, again, that both sides know roughly the content of the resolution. And because that is so, there is no compelling reason for them to reject the opportunity to move forward towards peace.

That leaves only the selection of the arbitrator as the potential joker in the deck. But if that is what it comes down to, it is not an impossible obstacle. There are both individuals and groups of individuals whose commitment is more to a stable peace than to the one side or the other.

Now, the difference between pendulum arbitration in general and pendulum arbitration in the case at hand is that in the case at hand, there are a large number of variables to be decided, whereas the system as it works in the real world is typically employed to reconcile just one difference - most often, salary. What happens in the Israel/Palestine case if one side comes in with an eminently reasonable proposal, save for one item where its demands appear excessive, while the other side comes in with a solid proposal save for two somewhat exaggerated demands? Yet according to the agreement, the arbitrator does not have the authority to split the difference or to propose a way to reconcile it.

The fact is, however, that in many key respects the powerful likelihood is that the proposals from the two sides would be nearly identical. Nothing prevents the arbitrator from making that known and from rejecting both proposals on account of their occasional excess. At precisely that point, we may imagine, the voices of both peoples might be raised in favor of a compromise on the two or three outstanding differences.

All this is admittedly a long shot, if for no other reason than its novelty. But it is a shot, at a time when proponents of a two-state solution are virtually without other ammunition. Absent this or some other as yet unspecified new approach, the grim prospect is for more of the same - intermittent negotiations, intermittent spikes in violence, the occasional lapse into full-scale violence - and, ultimately, the abandonment of a two-state solution. And that, for all the reasons by now familiar to readers, is unacceptable.