Project Emesh 7 - Involuntary Arbitration

 

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.

Project Emesh 6 - The Lowdown on Arbitration

Author's note - Please see the previous Project Emesh post HERE as a preface for this one.

So far, we have learned that in today’s age, a Din Torah is binding arbitration and not Jewish adjudication.

 

What is the significance of this fact?

We need to know what arbitration really is in the outside world. As such, for most of our discussion in this post, I will be talking about common arbitration in the secular world.

 

In my previous post, we discussed the primary distinction between court litigation (adjudication) and arbitration. The first thing we said is that, in arbitration, the sides mutually agree to allow the arbitrator to settle the dispute to his – the arbitrator’s – liking. In essence, they are giving the arbitrator the power of a judge. But, in some ways, the arbitrator has more power than a judge. 

How so?

By common universal law, an arbitrator’s ruling cannot be challenged by either side. 

Why not?

Because both sides agreed to listen to whatever he said. If they agreed to listen to him, that’s what they need to do. It doesn’t matter if he is right or wrong or if his ruling does not concur with local laws. This is as long as it does not blatantly contradict or violate the local laws.

What this means is that, by default, a decision by an arbitrator is not subject to an appeal before any outside body. It is final. A court cannot overrule the decision of an arbitrator by discrediting the merits of his decision. A court can only intervene on the ruling of an arbitrator for technicalities, such as in the following cases:

• The arbitrator violated the conditions of the Arbitration Agreement in his case.

• The arbitrator violated the common laws of arbitration – for example: the arbitrator did not allow one of the sides to evaluate or respond to evidence brought by the opposing party.

• The ruling can be deemed to be overtly unjust or unreasonable – for example: if an arbitrator blatantly ignores or contradicts the clearly stated terms of a contract that is being disputed.

• The arbitration directly involves a party who is not a party to the arbitration – for example: if an award is reimbursed by insurance or the dispute involves property which is co-owned by a spouse or partner who did not consent to the arbitration.

• The arbitration award exceeds the amount that is under dispute.

If one of the above happens, the aggrieved party can go to court to request that the arbitration be totally vacated. The court may agree and vacate, or send the case back to arbitration with instructions to remedy the complaint and proceed accordingly. Nevertheless, the standard right to appeal that is part of adjudication in most countries does not apply to arbitration. 

There are several other standard features that are a part of court litigation that are not standards of arbitration. However, many of these can be implemented in arbitration with the mutual agreement of all three parties. Remember that at this point, I am discussing common secular arbitration. Here is a short list:

Appeals

As previously mentioned, there is no automatic right or method to appeal a ruling. It is always possible for one to request the arbitrator to review the ruling and to change it, but this is up to the arbitrator. It cannot be demanded. Also, he will be reviewing his own ruling. There will not be a “fresh set of eyes”.

Even a review comes with restrictions. It may be surprising that, once an arbitrator gives a ruling, he is very limited on how and for how long he can make changes and what kind of changes he can make. Basically, the aggrieved party has a limited time to request a review (this is the same with appeals) and the arbitrator has a limited time to change his ruling. Moreover, in general, he cannot fully vacate his own ruling. He can only confer modifications, corrections, and fill in things he omitted.

 

Still, because there is not any oversight on arbitration, an arbitrator can overturn his own ruling and it will stand as long as the newly aggrieved party does not challenge him in court. This really applies to all of the shenanigans an arbitrator can pull off. He can bend the rules of arbitration and, so long as nobody challenges him in court, it will stand. We will see later how all this plays out in Beis Din.

In any case, if all parties agree, a system of appeal can be specified in the Arbitration agreement.

Grounds for Award (Transparency)

In court, a judge must present the legal grounds (reasons) for his ruling. There are two reasons for this. One is to justify that the ruling complies with the local law. Included in this is the need to clear up potential contradictions with other court rulings in similar cases. The other reason is to enable the aggrieved party to appeal to a higher court if they claim the law was misapplied (and when they discover contradictions in court rulings of similar cases).

Neither of these reasons apply to arbitration. Arbitration does not need to comply with local law. Also, there is no standard right to appeal. 

Despite this, some jurisdictions do indeed require an arbitrator to ground his ruling as the default. I would assume this is for just plain transparency. This requirement can only be disregarded if the parties agree to waive the grounds in the Arbitration agreement. 

In many others, the default is that the arbitrator does not need to ground his ruling unless (a) the Arbitration agreement specifies that he needs to ground his ruling or (b) the Arbitration agreement allows for some system of appeal. 

In Israel, the default is that the Arbitrator does not need to ground his ruling as long as they did stipulate it or agree to allow for appeals. As a rule, all Batei Din rely on this default, yet they still insert this waiver into their Arbitration agreements. 

Why?

Because the Shulchan Aruch says that they do need to ground their rulings. The Batei Bin want you to waive this Halachic requirement.

This is a long discussion and a major problem. We will discuss it in a future post.

Protocols or Court transcripts

Courts record the proceedings in court protocols. These records are very useful. There is no requirement for this feature in secular arbitration. However, this is one thing that is a standard in Halachic arbitration (i.e., Dinei Torah) because it is a tradition of Beis Din and is noted in Choshen Mishpat 13:3.

Summations

Summations are vitally important. I intend to devote a full post on this subject later. This is a standard feature of court litigation but there is no requirement to allow summations in arbitration. As such, an impatient arbitrator can bar the sides from presenting summations. I think it is necessary to stipulate for allowing summations in every arbitration agreement. You certainly won’t find them in a standard Beis Din agreement.

Discovery (or Disclosure)

This is another feature that is standard in court litigation and is totally expendable in arbitration. Discovery can be a double-edged sword. It can hurt one side or the other more than it helps them, so some parties may prefer to be without them. Either way, an arbitrator is authorized to subpoena any side to present documents in question.

Witness Testimony

This is a sticky one. On the one hand, an arbitrator has the authority to regulate or manage how evidence is presented. As such, he may make his own rules (unless otherwise stipulated) and disallow calling witnesses. On the other hand, one core tenet of arbitration is that each side must be allowed to present whatever evidence he has to prove his case. In other words, an arbitrator cannot really bar a party from bringing live witnesses, but he might try to get away with it. If he does, the only way to fight it is to bring the case into court.

Just like documents, an arbitrator indeed has the power to subpoena non-party witnesses to arbitration. However, it is very difficult for an arbitrator to sanction a witness who doesn’t comply. So, if you need a witness who may be reluctant to show, you can’t depend on arbitration to make sure it happens. 

In Dinei Torah, if they want to subpoena a religious person who respects Beis Din, a frum Jew is required to show up (if he is in the vicinity), but if you need a reluctant non-Orthodox or non-Jewish person to testify, a Beis Din won’t have much clout.

Third party involvement

Court litigation does not need to concern itself if a judgement affects a third party such as insurance, an employer, a business partner, or current or ex-spouse. In all likelihood, they will be either involuntarily named as a party or invited to the litigation. In arbitration, only the sides in dispute have agreed to this process, not any outsiders. You cannot name an outsider as a third party to an arbitration against their will. Thus, if the case must involve a third party who doesn’t want to join in, the arbitration cannot proceed. Hence, if you want to sue a person who is insured, it cannot be done via arbitration unless, for some reason, the insurance company consents to arbitration.

Expenses

In court litigation, it is standard to figure in to the final judgement reasonable legal expenses such as court costs, attorney’s fees, and compensation for witnesses. As such, a claimant who is smug about his case can hire a reasonably priced lawyer to represent him and hope to get compensated if he wins. In secular arbitration, all this is up to the arbitrator. He may or may not award expenses. 

As mentioned in a previous post, many arbitrations end up in imposed settlements or compromises so there is no justification to award expenses to either side even if they spent a wad on lawyers (or toanim). Similarly, many people who go to arbitration do so to settle the dispute based on logic, but not based exclusively on the law. As such, they have no need for a lawyer since the letter of the law is not the determining factor.

Batei Din typically refrain from ever awarding expenses. You may want to engage a toen or a lawyer but, unlike secular court that expects representation, Beis Din is not interested that you have one. In their eyes, you don’t need one. So, don’t expect to ever get a penny of compensation for them. 

Enforcement

Secular courts can enforce their rulings. Arbitrators cannot. The only way to get an arbitration award enforced is by going to court to certify the ruling. Then it can be enforced just like any court ruling. 

The other side is given the right to respond to the certification request. Although it is not easy to do, he has the opportunity to challenge the ruling and try to get it overturned or vacated. This can become a second court battle, and the winning party might need to engage a lawyer, and may actually lose. Even if he doesn’t lose, which is normally the case, the whole process is exhausting, time-consuming and could cost some money. Winning arbitration and collecting is not always Easy Street. 

Costs

This can go either way. Often, the sides opt for arbitration because it is less expensive than litigation (or they think it will be). This is especially the case if they do not plan to hire lawyers. However, by secular arbitration, more often, it is the opposite.

 

Most court litigation involves a standard court fee and processing and nothing more. Court judges are employed by the State and are not paid for their time by the litigants. The big money is in legal representation, but even for this, the winning side is usually at least partially compensated. One side benefit of all this is that a judge has no incentive to drag out the proceedings.

Arbitrators are private citizens and they usually charge very impressive fees for their time. The more arbitrators there are, the more it costs. The more time it takes, the more it costs. Thus, in the secular world, it is very typical that arbitrators will drag out the cases in order to get paid more money. In some cases, it is deviously intentional. In others, it is sub-conscious, but it is human nature that even affects the most honest of us. 

As such, a lengthy arbitration can cost way more than court. Add to this lawyers or toanim, if applicable, where they are also paid for their time and are in no hurry to get the case resolved. And don’t forget enforcement, if needed. For these expenses, it is questionable if they will see any of it back. Secular arbitration can easily cost more than the money in dispute. 

Incidentally, the same thing applies to mediation. Mediators are also private citizens who take sizable fees for their time and can cost each side a bundle. But there is a big difference. In mediation, the parties in dispute call the shots. Each party has the right to spontaneously terminate the mediation at any time for any reason. If anyone feels that the mediator is dragging things out or is no longer cost effective, they can unilaterally terminate and cut their losses. Likewise, the running meter incentivizes the sides to get down to business and resolve their issue the sooner the better.

In arbitration, the arbitrator calls the shots. Once the agreement is signed, they are beholden to the arbitrator until the end. Neither side can back out unilaterally. If he prolongs it, they are stuck. What’s more, hurrying the procedures may not be in their best interests because haste makes waste.

Baruch Hashem, the Batei Din know that religious Jews are bound to Halachic arbitration and do not have an option for secular court under regular conditions. As such, they endeavor to make the costs for Dinei Torah as low as possible. 

The dayanim are usually working pro-bono or are paid sparingly for their time by the kehillah or organization that is sponsoring their Beis Din. As a result, costs are low for the litigants. Unfortunately, working for little or no pay often causes the dayanim to get very impatient to hurry the case along and, as we already said, haste makes waste. 

So now, after this very depressing list of drawbacks, why would anyone opt to go to arbitration?

And…is it good for the Jews or bad for the Jews?

We will save this for an upcoming post.

Project Emesh 5 – What is a Din Torah [in Today’s World]?

In my opening post on this series, I wrote:

This is a project to educate readers about Beis Din. What it is and what it isn’t; how it works and how it should work; what every person should know before they call for a Din Torah or before they respond to being called; and how to avoid getting hurt.

Most people who haven't been to a Din Torah, even the most learned among us, don’t have a clue.

So, let’s get started. Go around your community and ask the following question: What is a Din Torah?

You will get two types of answers. Type 1 will come from consumers who are full of assumptions and misconceptions. Type 2 will come from those who have “been there”.

So what is the Type 1 answer?

A consumer will answer that a Din Torah is a court case that is presided by three Jewish judges and follows the laws of Judaism.

In other words, it’s the same thing as suing somebody in a secular court in front of a non-Jewish judge or jury, but this happens to be in front of a panel of Jewish judges and the laws being scrutinized are our Jewish ones instead of the national ones. In English, this process is called adjudication.

This sounds about right. In fact, this is what those of us who have gone to Yeshiva and learned Bava Kamma and Bava Metziah and Kesubos and Sanhedrin will think it is because this is what is described in the Talmud. Jewish court.

Well, these folks are behind the times. This is what a Din Torah used to be and what a Din Torah should be even today, but no longer. It doesn’t apply to today’s world. This is why we pray each day for השיבה שופטנו כבראשונה. 

We want Dinei Torah to be just like they used to be.

The Type 2s who have more experience will spell it out. In today’s day and age, a Din Torah is Halachic arbitration. It is not adjudication. You are not in court. You are in front of an arbitration panel. Binding arbitration. The three learned Jewish men with long beards that scowl at you are not judging the case. They are arbitrating a dispute. Legally, and to a certain extent even Halachically, they are not judges. They are arbitrators.

But we still call them dayanim. Hence, all the confusion.

What is the difference between adjudication and arbitration?

Before I answer this, we may as well throw into the mix a third method of settling disputes which is called mediation. In mediation, the dispute is not being judged and not being arbitrated. It is being mediated. 

So, what are these three methods? Let’s check some online definitions.

Adjudication - Adjudication refers to the legal process of resolving a dispute or deciding a case. When a claim is brought, courts identify the rights of the parties at that particular moment by analyzing what were, in law, the rights and wrongs of their actions when they occurred.

Arbitration - Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Mediation - Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The parties do not reach a resolution unless all sides agree.

To briefly summarize, adjudication is a legal process of settling disputes according to the law. The defendant does not need to consent to adjudication. It can be carried out forcibly and the defendant can be summoned. Arbitration is not a legal process, although it has legal validity. It occurs when both sides mutually agree to abide by the ruling of the arbitrator(s). Once they consent to arbitration, the sides are bound to the ruling of the arbitrator. Mediation is also not a legal process and is not legally binding unless the sides forge a formal agreement which is then documented as a contracted agreement.

In the famous ground-breaking book on mediation – Getting to Yes by Roger Fisher and William Ury – the authors dramatize the difference as follows:

Suppose two siblings are fighting over the last orange in the refrigerator. Each one wants the entire orange for themselves and claims ownership – זה אומר כולה שלי וזה אומר כולה שלי.

The purpose of the judge is to decide which litigant’s claim is more valid by law. He will rule that either Party A gets the entire orange or Party B gets the entire orange.

The purpose of the arbitrator is to settle the dispute. He has a lot of flexibility. Even if he thinks that one person’s claim is somewhat stronger than the other’s, he may feel that the best thing to do is to divide the orange fifty-fifty. This will not necessarily satisfy the sides, especially the one with the stronger claim, but it does indeed settle the dispute. 

The purpose of the mediator is to see if there is a way to make both sides relatively satisfied. So, he may ask one sibling why he/she wants the orange. The response may be that he/she wants to drink a cup of orange juice. Then he will ask the other side the same question. Let’s say that the other sibling says that they want to bake a cake and the recipe calls for the rind of an orange grated up. 

In such a fortuitous situation, the mediator will suggest that the first sibling takes the orange to squeeze the juice and then gives the rinds to the second one for the cake. Even if they both want juice, maybe one side can be “bought off” with a dollar or a plate of ice cream or some other external compensation.

In any case, we see that adjudication (din) is the strictest method and follows the letter of the law. Typically, judges are very quick to suggest arbitration or mediation so that there can be mutual consent at some level, or they may even suggest compromises (settlements) on their own. But all too often, one or both sides will not hear of it. They know their case and they know the law and they do not want to open the door to settlements that will give them less than they think they deserve. 

As such, adjudication is the legal standard of settling disputes. So much so, that any normal human society has a court system where a claimant can summon a defendant for litigation whether the defendant wants to or not. In fact, this is one of the seven laws of Noach and is incumbent upon all human societies worldwide. Every normal society must and does have a functioning court system to settle disputes.

Except ours.

Don’t get me wrong. The Jewish court system described in Sanhedrin and Bava Kama and Bava Metziah and Choshen Mishpat are exactly that. And uninformed (consumer) Jews who have never been to Beis Din think that this is what it is today.

But, sadly, no longer. Our Batei Din for monetary disputes are all arbitration panels, not Jewish courts. Every one of them, whether in Israel or the galus. In Israel, the family courts have the authority of a legal court, so they have differences. But for monetary disputes, only arbitration.

Why is this?

The answer is that this is one of the travails of being in galus. Even here in Israel. 

We Jews are guests in other countries with other laws and procedures than we have. Generally, every country has government generated civil courts and legal systems and those systems are the only ones authorized to adjudicate disputes. Even here in Israel. Also, every legal system requires an umbrella of law enforcement – shoftim v’shotrim. Without being able to enforce court rulings, the courts are powerless. (See Rambam Hilchos Deos 4:23 – Every city must have a בית דין מכין וחובשין. This means a BD that can enforce its rulings.)

We Jews have no mechanism of enforcing court rulings. Probably, we would not obtain the legal authorization even if we had. As such, when a Jewish court issues a ruling, it must rely on the local law enforcement authorities to enforce the ruling. However, secular legal systems will only enforce rulings that are issued by their own system and comply with their own laws. The rulings of private courts as an adjudicated legal ruling is invalid. 

However, all normal societies recognize arbitration as a legal alternative to adjudication. This is as long as the litigants are following the host countries laws of arbitration. Generally, the laws say that two people can mutually agree to choose anybody they want to arbitrate their dispute, and they must sign a legal arbitration agreement. An arbitration agreement is like any contract between two (or three) parties. Thus, when they agree to binding arbitration and the arbitrator issues a ruling, the ruling can be presented to the court and certified as a legal court ruling. This is the same as when two parties in court do an out-of-court settlement. 

At that point, there is now a legal court ruling recognized by the State which is subject to enforcement by the State’s authorities. Only now can the ruling of Beis Din be enforced.

All this means that every monetary Din Torah that takes place is doing so with the full agreement of both parties. This alleviates a very dangerous hazard. If a Beis Din would act like a court and unilaterally summon a defendant to their court and issue a ruling against them, the defendant has the power by the law of the land to sue these unauthorized imposters for illegal theft and extortion and whatever else.  

Of course, this opens up the question: What if the defendant (nitva) refuses to sign up for this arbitration?

The answer is that Beis Din is relatively powerless. They cannot even issue a seiruv with any punitive clause for fear of getting sued in court. Whenever you hear of a seiruv, it is nothing more than an announcement that this person declined to show up in court. If it is punitive, threatening, or it damages the nitva in any way, they can get into big legal trouble. 

But what Beis Din can do is to issue a hetter erkaos. This is a permit for the claimant to take the case to the authorized secular court where it can be adjudicated against his will. But even this is not so simple. It may depend on why the nitva does not want to sign up.

If the reason is due to outright defiance of Beis Din, BD can issue the hetter with no qualms. But if the nitva does not like this Beis Din and wants a different one, or does not like the terms of the arbitration agreement, or has other objections, Beis Din needs to try to work them out before it can issue a hetter.

We will discuss these things in detail in future posts.

Similarly, there may be reasons that the claimant (toveah) would not want to take his claim to secular court. Perhaps, there will be more expenses and long delays or fears of corruption or antisemitism. Perhaps, he suspects that the nitvah, who would not have the audacity to lie in front of a Beis Din, would not hesitate to lie through his teeth in secular court.  Perhaps, this type of case is one where there is a stronger claim by Jewish law than by secular law.

In that case, either he bites the bullet and goes anyway to secular court or he walks away. He is stuck. We are in galus.

This is just one of the drawbacks of being required to go to arbitration instead of a legal court. But there are quite a few others that I did not discuss here. I intend to do so in an upcoming post.

With the drawbacks of arbitration that were mentioned here and the additional players to be named later, the biggest question of all pops up.

Q. I don’t want arbitration, I want judgement. I want din! How do I get it?

A. Not from any Jewish Beis Din.

Q. In that case, I prefer to take my case directly to a secular court. Can I do that?

A. If it’s the type of claim that a standard Beis Din can handle, no you cannot. If it is something that Batei Din do not handle at all, yes you can (we’ll elaborate on this later.) For anything in between, you will need to ask your local Orthodox Rabbi (I am happy to give you my opinion, but I am not any kind of Rabbi.)

To summarize, one of the primary reasons that our current Beis Din system is so flawed is because it is not adjudication but arbitration, and there is no way around this. The arbitration system is a very flawed system, and I intend to explain why in the upcoming posts. We have yet to see how bad it can get. We are in for a bumpy ride.

We are still in galus.

 

Project Emesh 4 - My Predecessors - Rate My Beit Din and L’Chatchila

 

Project Emesh is meant to be a very ambitious project. 

In my previous posts I noted the two primary goals:

• To educate the consumerist public about how the system works and how to use it successfully. 
  
  
• To serve as or to establish some kind of regulatory body which will oversee all affiliated Batei Din. Any Beis Din that won’t be affiliated with this umbrella agency will be considered an outcast. 

The education part will be a bit tedious. The reason the general population is so ignorant about Batei Din is because this is a subject that most people really do not care to know about. It is not a routine part of their lives, and they have no need to know it…until they do. Alas, there is much to know and it takes a bit of work.

At the end of this series, I intend to present a list of reforms that will help simplify the education process. One of the reforms is that either the individual Batei Dinim, or the “regulatory body” that I hope to establish, will produce a standard pamphlet of procedures and do’s and don’t’s that should be made available to anyone who is facing a Din Torah. This would be just like the concise guides that we have on Hilchos Yichud, Bris Milah and Trumos, Maaseros, and Shmittah.

As for the establishment of a regulatory body, this is meant to include such things as an independent court for appeals (a very big subject) and an ethics committee. Doubtless, this requires a lot of cooperation from a lot of erudite people who, by nature, only like to do things “their way”. This is a very tall order.

After these, I added a third, less important, goal:

• At some point, I would like to create a database of specific Batei Din and rate their efficiency and compliance.

This is meant to be a means of gathering input from the public at large who have used the Batei Din in order to identify issues that need to be dealt with, and to determine which Batei Din are more reliable and which are less so.

Do any of these things already exist? Did anybody beat me to it?

Believe it or not, the answer is Yes, but not where I think they need to be. 

I have spent more than enough time in chareidi Batei Din and I also trained to be a Toen Rabani and I have not heard a whisper of anything like this in our Batei Din. As such, I assumed they did not exist at all anywhere. 

But just to be certain, I did my due diligence and research and, surprisingly, I came across two prototype models to my aspirations that are being tried out in the kipa-seruga [chareidi] dati-leumi (Chardali) and modern-Orthodox circles. One of these is an existing regulatory body and the other is an existing rating system for Batei Din. 

Yep, they beat us to it. And they are a sure-fire sign that I am not the only one who recognizes a need for these things and that they are doable. They are already being done.

Let’s see what they are.

Rate My Beit Din

In the realm of a rating system for Batei Din, I stumbled across Rate My Beit Din.

Here are the basics of Rate My Beit Din from their website:

Rate My Beit Din is a revolutionary user based review site for the divorce department of batei din (Jewish Religious Courts) around the world.

Transparency in the Divorce Process

Think of us as “Yelp” for batei din. Our goal is simple: to increase transparency in the Jewish Divorce process. Our site includes features such as general information about each court, cost for the divorce process in that court, average response time, and whether or not people have had good experiences with a particular beit din. The site also aims to hold batei din accountable for this process by making these reviews public.

Objective Beit Din Ratings

Ratings are based on hard data compiled from the “Beit Din Experience Survey”, as well as professional evaluations of the beit din. Each page and beit din are rated according to the same questions and criteria.

Rate My Beit Din is a project of Chochmat Nashim in collaboration with organizations and individuals around the world seeking to end Get abuse, Get refusal and to return integrity to Jewish marriage and divorce.

In case you are not familiar with Chochmat Nashim, here is a blurb from Wikipedia:

Chochmat Nashim (Hebrew: חכמת נשים) is an Israeli organisation that promotes women's rights in the Orthodox Jewish community in Israel and the United States. Their work aims to raise awareness of trends and policies within Orthodoxy that might harm women and girls. The group's activities include the establishment of a photo bank which includes the images of Orthodox women, and the use of satirical publications which mimic Jewish Torah study aimed at educating Orthodox men about the unequal treatment of Jewish women in religious divorce proceedings.

In short, it is an Orthodox Jewish women's advocacy group far to the left. On the Wikipedia page there is a sidebar that sports the title: Part of a series of articles on Jewish feminism

This is not my cup of tea.

Incidentally, I don’t think that the person who wrote the description for Wikipedia is very fond of the organization.

Rate My Beit Din is not relevant or useful to my cause for several reasons:

• It is only addressing the Family Batei Din (Divorce courts) and not the Monetary Batei Din. I want a very similar system for the monetary Batei Din.

• It is a feature of a left-wing organization which does not display on its website any Rabbinical endorsements or alliances even from Modern or centrist Rabbis.
  
  
  
• The rating is highly unreliable due to its gender bias. What I mean is this. The goal of Chochmat Nashim is to make the divorce process more favorable to women. Even though much of their substance is presented in an egalitarian setting, since abuse can go both ways, the site is clearly women-oriented. It’s not called Chochmat Nashim for nothing. 
  
  

When it conducts the surveys, it allows anyone, male or female, to participate and submit a review. Nonetheless, we can assume that the overwhelming majority of respondents will be women. Especially since one of the categories is, “Felt pressured by the BD to exchange something for Get.” Thus, the rating will not reflect how capable the Beis Din is in general but rather, how efficient it is for assisting the women based on their personal experience. We can also assume that, for the same couples, the men would rate the Beis Din based on their expectations and experiences which may be the inverse of the wife’s.

 

As a result, let’s take for example the CRC of Chicago which got 4 stars with 10 reviews and compare it with RCC California which merited 2 stars after 16 reviews. If the reviews were predominantly from the women, it’s possible that a consensus of men would give CRC Chicago 2 stars and RCC California 4 stars for the same performance. And it may also be, that neither rating would accurately reflect the overall professionalism of the Batei Din from a Halachic point of view.

 

• Another issue is that they are quick to list the Batei Dinim and display the ratings even after only one or two reviews. This can easily mislead a leader who sees a five-star rating or a one-star rating and does not realize that, in each case, only one person submitted a review. There should be some sort of minimum number of reviews before a Beis Din can be rated.

All that said, Rate My Beit Din does indeed mirror the system I would like to see in Batei Din for Mammonos. The important thing is that it lets the relevant Batei Dinim know that they are being watched and evaluated. I am gratified that there is a prototype up and running for this.

L’Chatchila

A ratings system is just the icing on the cake. As I wrote before, the more important goals are oversight, regulation, transparency, and a method of keeping the litigants informed of rules, regulations, procedures, rights and obligations. Most of the time, the litigants are only told of their obligations during run-time and they are not told of their rights at all.

I also wrote that after all my years here in Eretz Israel and my experience in this field, if I am not aware of the existence of any such regulatory body, then there probably isn’t one. 

Not so.

Although there are not any long-standing, well-established organizations, it turns out that there is something very recent that looks to be promising. This is a very nascent organization that was only first established in 2021 to unify a group of already existing Batei Din in the Chardali communities in Israel (only) into a network. We are talking about the Batei Din of places like Beit-El, Eli, Kochav Yaakov, Mitzpeh Yericho, Kiryat Ono, Kiryat Arba, Psagot, Maaleh Adumim, Gush Etzion, Karnei Shomron, you get the idea.

It is actually the reincarnation of another organization created in 2018 by the same people. It seems that the original version petered out during Corona and is dead in the water and it was reincarnated to the newer version. 

But before 2018, there was nothing at all.

The name of the organization is L’Chatchila (לכתחילה - מערך בתי דין לממונות). You can see their original website HERE.

The earlier organization was called Igud Batei Din L’Mammonos (Union of Batei Din for Financial Claims) איגוד בתי דין לממונות. I suppose we can now call it Bediavad. See their website HERE.

As you can see on their website, they created a union of 15 Chardali Batei Din. They did not get a lot of publicity and around the era of corona it petered out. But it was reestablished under a new name in 2021 and is alive and kicking ever since. The headquarters is the Kollel for Dayanut in Yeshivat Heichal Eliyahu in Kochav Yaakov (or Psagot down the road). The founders are Rav Nir Aviv, who is the Rosh Kollel at Yeshiva Heichal Eliyahu, along with Rav Yitzchak Zaga, Rav Baruch Paz and Rav Ariel BarEli.

If you know Hebrew, you can see a promotional video about their network HERE.

I checked out the website and immediately noticed that it is all only in Hebrew. There is no parallel website in English, Russian, French or any other language. It looks as though they are only looking to serve their constituents. Other than that, they have all their material, i.e., documents and procedures for opening a case, Shtar Borerut, Tofes Tviah, Ktav Haganah, appeals, wills, Hetter Iska, Pruzbuls, even contracts for real estate purchases and rentals, available for download on their new improved website. Plus, they have a few docs with vital information (educational material) to help the "consumers" to navigate the system.

This is precisely what I am after. There is still something missing, but I will get to it later. (I do not mean the rating system.)

I contacted them for more information. I had a lengthy and productive conversation with one of the office secretaries, Geveret Y. B. She was friendly, knowledgeable and helpful. She told me that the main motives for setting this up was to make Beis Din as transparent and orderly as the secular courts and to offer a court of appeals. Another thing was to ensure that a court case can be resolved in a reasonable time frame. They aim to reach a ruling within three months. 

These things are deficient in the independent Batei Din for Mammonos and this lack is what holds back religious Jews from wanting to go to the Batei Din instead of the courts. They want to make Beis Din every religious Jew’s priority.

I asked her why the leading Chardali Beis Din in Yerushalayim, Eretz Chemda, is not part of their network. She responded that all the associated Batei Din need to conform with the standards and protocols of the Irgun. Eretz Chemda, which is a force in itself, did not want to subjugate their independence to an umbrella organization. They still have a good working relationship.

I also had a brief conversation with Rav Nir Aviv, the founder. I asked how many Batei Din they have now, and the answer is close to 30. 

I asked him why all of their information is in Hebrew and they do not have any accommodations for folks who don’t have Hebrew as their first language. He said he hopes to be able to expand in languages eventually. Most of his chevra know nothing but Hebrew.

I asked if he tried to recruit any black-hat charedi Batei Din to his network. He said that he hasn’t made moves in that direction, but he would be more than happy if they want to join up. He did add that it is not uncommon for us black-hat chareidim to make use of his Batei Din. Aside from the features of an appeals court, there is much more neutrality if they go there since, in the chareidi Batei Din, everybody knows or is related to somebody.

I asked him if he knows my brother-in-law’s brother who happens to be the Rav of Kochav Yaakov. He does. 

Lastly, I asked him about the “missing something” that I mentioned several paragraphs back. He said that this would be opening a Pandora’s box, but he is willing to listen to what I had in mind.

In any case, in my opinion, this organization is truly L’Chatchila. As I said, it comprises most of what I want to see in this regulatory body. I am excited about it and sincerely wish it growing success. We really need it. 

When I say,” We really need it”, I mean the royal “We”. We need this in the black-hat chareidi world. In my opinion, their system is real L’Chatchila and ours is Bediavad. I would be very happy to see a list of black-hat chareidi Batei Din joining their network, maybe as a separate lineup. If not that, then to establish a network of our own.

This is what Project Emesh is all about.

And now, just what is this mystery missing element that I want to see adopted by all Batei Din? The one that would be opening a Pandora’s box?

It is a more comprehensive and user-friendly Shtar Borrerut (Arbitration agreement).

Most people who have never been to Beis Din have no clue what a Shtar Borrerut is, why it is necessary, why it is so important, and why it is so dangerous. They didn’t learn anything about it in Sanhedrin or Bava Metziah. They did not exist in the old days.

How, why, and when did these turn up? What’s wrong with them, and how can we fix them?

This is the main subject of my upcoming posts.

Stay tuned for the Pandora’s box.

Project Emesh 2 - Mission Statement – Hashavas Aveida and Sustaining the World (Parshat Ki Teitzeh 5784)

 

In my opening post, I quoted several frightening statements from Chazal that spell out how enormous is the responsibility of Jewish judges and that many are those who are guilty of “mismanagement” (to be nice). I don’t know if any of these passages are as frightening as the one that we all know from the Mishna at the end of the first chapter of Pirkei Avos: 

רבן שמעון בן גמליאל אומר, על שלשה דברים העולם קיים, על הדין ועל האמת ועל השלום, שנאמר (זכריה ח, טז) אמת ומשפט שלום שפטו בשעריכם.

Raban Shimon ben Gamliel says: The world remains in existence on account of three things – on judgement (Din), on truth (Emess), and on peace (Shalom), as is written (Zecharia 8:16), “truth and judgement and peace must be judged in your cities.”

The implication of this statement is that the application of these three things are vitally essential for sustaining the continued existence of the world. One who upholds these values is sustaining the existence of the world and, conversely, one who is responsible for maintaining these values and shirks his responsibility – and more so if he acts against these values – is destroying the world.  

     

Destroying the world!

As said, these three values keep the world from self-immolation. According to the Mishna they are:

Din – Emess – Shalom

But, according to the verse in Zecharia 8:16 that teaches this to us, they are:

Emess – Mishpat – Shalom

E. M. Sh. = EMeSh.

Introducing Project Emesh. Project Emess, Mishpat and Shalom.

This Mishna in Avos is so fundamental that Rabenu Yaakov ben Asher, the Tur Shulchan Aruch, quotes it to open his section on monetary laws, Choshen Mishpat (1:1). 

The Tur writes a very long introduction, but his main point is that without din - the rule of the judges - along with emess (truth), there cannot be any shalom (peace). Note that the Beis Yosef, ad loc., wants to say that the attribute of din applies to the dayanim, the attribute of emess applies to the witnesses and the attribute of shalom applies to the litigants once they accept the ruling. But the Tur himself places all three things in the domain of the dayanim. If the dayanim do not judge properly, they are ultimately to blame that there is no peace among the litigants.

This even applies if they are called upon to sit in judgement and refrain from doing so. They are not at liberty to walk away. Every Jew is responsible to do what he or she can to prevent another Jew from suffering losses to life, limb or property. This obligation is called השבת אבידה. 

This mitzva happens to be written in this week’s Parsha, Ki Teitzeh (Devarim 22:1 and 22:4). In the mitzva of hashavas aveida (and the following one), the Torah tells us one cannot be present when another Jew’s sheep is wandering or their donkey collapses and ignore them (לא תראה...והתעלמת). If he is present and is in position to assist, he is obligated to do so. We will see the importance of this in future posts.

In my own experiences in monetary Batei Din I have seen way too much shefichas “damim”, in all its ambiguity. This is why it brings cherev to the world (Avos 5:11). There are flaws in the system that cause this that can be easily fixed. 

The mission of Project Emesh is to identify the flaws and to suggest possible remedies. Allow me to repeat what I wrote in my previous post:

This is a project to educate readers about Beis Din. What it is and what it isn’t; how it works and how it should work; what every person should know before they call for a Din Torah or before they respond to one; and how to avoid getting hurt.

Most people, even the most learned among us don’t have a clue.

In short, it is an exercise in hashavas aveida.

One Above and Seven Below was released 17 years ago. As I wrote in the Introduction of the book, its primary purpose is to educate consumers of Judaism as to how it really works. How to get the best results from this “product”. Sadly, those of us who aren’t learned aren’t learned and, as such, they are “consumers” (as opposed to “professionals” or “experts”).

One of the most neglected parts of our religion are the laws of business and monetary issues and resolving disputes. As I wrote in my section about prenups, this applies to family law as well. People blindly get married without really knowing the rights and obligations of each side and what to do if, chas v’shalom, their problems get as far as a Beis Din. When they get to Beis Din, they don’t know what hits them. For this reason, I suggested reforming the Chassan-Kallah education system to include relevant parts of Even HaEzer. 

If a kallah is taught what kinds of behaviors will result in her losing her ketubah in Beis Din, she will know that these behaviors are not only unacceptable, but are hazardous to her bottom line. This should bring about better conduct during a marriage and, when the worst happens, a smoother divorce. But these rules are usually not even taught.

When it comes to Batei Din for mammonos, the problems go way beyond mere ignorance of the players and not knowing the rules, i.e., problems that apply to the litigants. the problems also concern the dayanim of the Batei Din who take advantage of this universal ignorance to bypass the rules. This happens in Batei Din for gittin as well, but there is more hefkeirus (lawlessness) in the monetary courts. 

I will explain why this is so in an upcoming post, but I will divulge one part of the reason. A lot of this has to do with the independence of the various Batei Din. There is absolutely no regulation or oversight for Batei Din, no organization that controls or “unionizes” the Batei Din to work within uniform guidelines. There are no ethics committees and no courts of appeal. There is no Vaad HaKashrut for Batei Din. Not in Israel, for the monetary Batei Din, and not in the diaspora for any Batei Din.

We need these things. Without them, there is no authentic mishpat, no emess and certainly no shalom. This is destroying the world.

And so, the primary mission of Project Emesh, just like the mission of One Above and Seven Below, is to educate the consumerist public about how the system works and how to use it successfully. I consider both to be an exercise in hashavas aveida. 

The secondary objective is to serve or establish some kind of regulatory body which will oversee all affiliated Batei Din. Any Beis Din that won’t be affiliated with this umbrella agency will be considered a outcast. This is similar to the Vaad Mishmeres HaSTaM here in Eretz Yisrael. At some point, I would like to create a database of specific Batei Din and rate their efficiency and compliance.

The ultimate goal is to strengthen emess, mishpat and shalom. Thus, the ultimate goal is to sustain the world!

The upcoming posts will present the realities, the problems and the solutions. They are based on my personal experiences in Beis Din and some as an observer, my association with dayanim and toanim, and my [limited] knowledge of Choshen Mishpat. I know enough to take on this project but there is plenty that I don’t know and would like to.

As such, I encourage any and all readers who have firsthand accounts of the excesses of our Batei Din (i.e., “horror stories”) to share their stories with me. I only want the true objective facts but as much detail as possible. I am more interested in the monetary Batei Din, but stories of any Batei Din are valuable.

As of right now, Project Emesh is nothing more than a concept that resides in my blog site. It is not an official NPO or Amuta, but I hope it will one day be one. It is not [yet] monetized, it has no staff, no web page and no specific email address. It’s all right here. 

I do not yet have a dedicated web site or email address for this project, so for now, all correspondence should be sent to my One Above email address: 1a7b.author@gmail.com. 

I hope this project will take off, make a name for itself and a place for itself (Amuta), and make a constructive difference in Orthodox Jewish society. Who knows? Maybe I’ll even get interviewed on Meaningful People. 

After all, I am trying to strengthen Emess, Mishpat and Shalom with the goal of sustaining the entire world. What could be more meaningful than that?