Author's note - Please see the previous Project Emesh post HERE as a preface for this one.
In our previous post, we listed several instruments of civil court litigation which are not a standard part of secular arbitration such as appeals, discovery and grounding the ruling. These legal tools were instituted in litigation in order to help reach fair and just outcomes. So, the looming question is: why would anybody prefer arbitration over court litigation when faced with the choice?
I can think of several reasons which apply to secular arbitration but may not apply as much to Batei Din. They are:
Speed – Arbitration is usually much quicker. Often times, years quicker. As they say, time is money. The sides want to resolve their problem and move on.
Cost – as indicated in the last post, if it helps cut out lawyers’ services, it can be much less expensive. The only reason it may cost more is they need to pay high rates for the arbitration itself. But even this expense comes with a silver lining because the sides who are paying the arbitrator have a certain amount of joint leverage to get him to move along. After all, unlike a judge, they are covering his bills. He is working for them.
Selectivity – In litigation, one cannot choose the judge or decide on a panel of judges. In arbitration, the sides jointly choose how many arbitrators and who they are. This is crucially important when there is a disparity between the litigants such as race, religion, gender, or any other orientation (liberal vs. conservative). If one side is black and one white or male vs. female (or white male vs. black female) and there is only one judge, it can make a whale of a difference what kind of person is the judge.
Judges can have reputations in terms of being experienced, fair, just, unbiased or not and so can arbitrators. Hence, arbitrators can be chosen to match the interests of the sides. When the sides have conflicting interests, they can customize a panel where one arbitrator may lean to the orientations of one side and another to the second and a third tie breaker.
No intimidation – Although arbitrators have some potent legal powers by laws of arbitration, such as to subpoena witnesses, they do not have legal authority of enforcement. They cannot dictate when the sessions will take place if they are inconvenient to the sides, and they cannot put litigants in “contempt of court” for disobeying them and levy fines or throw anybody in jail. As such, the litigants will not feel intimidated by the arbitrators.
Better odds for each side – As we noted, the arbitrator is not basing his ruling [exclusively] on [the letter of] the law, but more on logic and fair play. Firstly, this is the reason why there is less of a need for lawyers. Additionally, a side that does not have the law squarely in his corner has reason to hope for a better result than he will get in court.
Customization – Remember how I noted that arbitration does not have some of the standard legal tools that we get in court? Well, they may not be standard, but they can all be implemented. Arbitration agreements can be drawn up to include all or some of these tools. The sides can agree to have a third-party appeal system and/or discovery, summations, detailed rulings, just like in court. They are paying for this arbitration, so they call the shots. If an arbitrator doesn’t like to work this way, the sides can shop around for other ones. In general, most private arbitrators, who need to pay their own mortgages, will not be fussy about these things. As such, this list of drawbacks to arbitration are not really drawbacks. All the tools are available.
So, we can look at this list as reasons why litigants may prefer arbitration over court when faced with the choice. This is very effective when both sides recognize the validity of the dispute, and their goal is to get it resolved.
Of course, this is not always the case. Litigants are usually not very good friends and sometimes they are downright hostile. In that case, the dispute will probably go straight to court. After all, taking the case to court is the default course of action. Arbitration is an alternative. Thus, in most cases of secular arbitration, arbitration is jointly accepted by the sides because it better serves their individual interests.
To throw in one more upside, since the arbitration is agreed by both sides, it is more likely that the loser will freely comply with the ruling and there won’t be a need to turn to the courts for enforcement.
Sadly, Dinei Torah are not as “rosy”. The sides are not going to arbitration because they prefer to. In fact, one or both sides may prefer the old Choshen Mishpat style Dinei Torah or even secular court. In today’s world they are forced into arbitration. Because of this, many of the advantages listed above don’t apply as much or at all.
Here is how they line up:
Speed – There is no arguing that a Din Torah will be light years faster than going to court in reaching a ruling, so this advantage holds. BUT…this only applies to the ruling. Remember what I just said about litigants being hostile. Most Dinei Torah are not based on mutual consent. A nitva is never interested to go to Beis Din.
So, if the ruling is in the nitva’s favor and he doesn’t have to pay anything, that will end it all quickly. But if he needs to pay money or return the merchandise or revise his building plans, he may not be so eager to comply. The case may need to go to court to be enforced and can get set back for a while. If a toveah knows he is dealing with a potentially recalcitrant opponent, a Din Torah may make things go slower than if he went straight to court.
Cost – This one usually applies. The standard Batei Din are usually supported by Kehillos or organizations which subsidize the system. Devoted dayanim work for very low pay or none at all. This is one area where there is not much to complain about in the Beis Din system.
Selectivity – All dayanim are Jewish males, so if you are a Jewish male, there won’t be much conflict. However, a Chassidish Beis Din may not work like a Litvish Beis Din and a Religious Zionist Beis Din not like a Chareidi Beis Din and if you are not Lubavitch you probably won’t want a Lubavitcher Beis Din, especially if your opponent is Lubavitch.
In a Din Torah, the toveah (claimant) is the injured party and the one who wants the Din Torah. The nitva (defendant) couldn't care less. Unfortunately, the toveah doesn’t get to pick the Beis Din. The toveah can open the case in any Beis Din that he feels comfortable at, but the nitva can move it anywhere else. Also, if the toveah and nitva do not live in the same location, the toveah needs to go to where the nitva is.
This is a long discussion that will probably warrant a complete post.
Another thing, choosing a Beis Din does not mean there is any flexibility to choose any specific dayanim (if there are more than just three on the roster).
So, although there may be some control, it is very limited.
Now, there happens to be a way around this problem, but it isn’t simple. I am sure many readers heard about a Zabl"a Beis Din. I wrote about it about half a year ago in this post (HERE).
A Zabl"a Beis Din personifies the exact system I outlined in secular arbitration where the two sides build a panel of arbitrators and each litigant chooses one for himself. Although this does carries all the inherent advantages, it also carries a lot of issues. Here is what I wrote last May:
Although the Zabl"a procedure is still available today, it is very rarely used. A Zabl"a court is not so practical to set up since it involves a lot of time and bickering between the two sides. It can only work when both sides agree to go to Beis Din and this doesn’t usually happen until after the nitva receives a summons from an established Beis Din. Secondly, a makeshift Beis Din is usually not equipped with a mazkir or safra d’dayana or any staff or equipment or even a place to hold court. Thirdly, Zabl”a dayanim generally charge good money for their time and effort and they become prohibitively expensive.
Intimidation – As I wrote above, the salaries of the dayanim, if there is any, is usually subsidized by outside sources. As such, the dayanim are in no way beholden to the litigants. An arbitrator is not a judge, but a dayan is always a dayan. A dayan is a Halachic judge even if he is, in effect, doing arbitration. He has the Halachic authority of a dayan and all the powers given by Shulchan Aruch. Any directive or sanctions that a dayan (or BD) imposes is valid. Technically, a dayan – or, for sure, a Beis Din – can impose a nidui or cherem on a recalcitrant baal din. (Baruch Hashem, this is not done today. It's too daunting for all those involved.)This is no game. Dayanim can be very intimidating.
Odds for Each Side – We will see in future posts that in a Beis Din, the chips are generally stacked in favor of the nitva. It is hard for a toveah to win a case in Beis Din. I can tell you this firsthand. I think a toveah will get a better shake in a secular court.
Customization – In essence, this is what I am fighting for in Project Emesh. As it stands, all Batei Din have their standard arbitration agreements which are universally devoid of any special tools or protections of the litigants. No allowances for appeals, summations, discovery, grounded rulings, expenses or anything. And they are not interested in making changes. They don’t even want you to read it up front.
If you fight for some of these things you may get them, but it will probably be a “fight”. One of the goals of Project Emesh is to make these tools more standard and available.
Sof davar, assuming there was a choice whether or not to take your dispute to Beis Din, Beis Din won’t always look like the better deal. We may even uncover more reasons for this in upcoming posts. This isn’t how it used to be, but this is the way it is today. So, the question comes up:
What if I prefer secular court over Beis Din? What if both of us prefer secular court over Beis Din? Do I really have to go to Beis Din?
We will deal with this in the near future, IYH.
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