In what is now breaking news, a judge has ruled that there was likely bias on the part of some Dayonim in a recent case between Amzalak and Koncepolski. It makes for very sad reading. One of the Borerim, unfortunately has form, having been named in quite a few controversies over the years.
I call on the Rabbinical Council of Victoria in concert with the Melbourne Beth Din to ensure that
- there is an accreditation process for Borerim. In my opinion, that should be set up under the aegis of the Beth Din of America. Accreditation should include formal Shimush. If that means someone sits in on cases for six months in a Western country, then so be it.
- further professional development (as opposed to an external Dayan coming to Melbourne to deal with the “odd” commercial dispute) must be instituted. My advice is to invite Rav Yona Reiss who is on the Beth Din of America (and who is also an attorney) to review the last ten-fifteen years of involvement between Batei Din/Zablo and the courts and together with Jewish members of the legal profession, conduct a week-long formal course to develop the expertise of Rabbonim and potential Borerim vis-a-vis the process of Secular Law and its intersection with the constraints of Jewish Law.
- an open heter arkaos be issued such that litigants should go to a secular court to resolve their differences until such time that the Rabbinate develops the expertise to handle cases in a professional and respected manner.
As a Jew, I do not want to read criticism of Rabbonim about bias and procedure. This is an unmitigated חילול שם שמים that far outweighs (in my unlearned opinion) the permission required to proceed to secular court before attempting to use a local Rabbinic arbitration/zablo/formal beth din process.
We have a long way to go before some כבוד התורה is restored after the damage of such proceedings.
To be fair, the secular system can sometimes be stupefying. See, for example this case where feather-fine technicalities were used at a huge cost to attempt to find fault in one line of a fair ruling by a respected former Jewish judge with a clean and universally respected reputation. No system is perfect, but what we currently have (or should I say don’t have) is terrible.
Disclaimer: My opinions are mine alone. They are not in any way linked to any entity with which I have a formal or informal relationship or employment.
pitputim 
I would also suggest that any Rabbi who want to be Dayan should get accredited by the professional body for Arbitrators.
In this way they would be subject to the rules and ethics of a professional body that could impose sanction if there is misconduct by them when preforming their duties as a Dayan.
I would suggest that the rules of the Beth Din prohibit the use of a Zablo.
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The Beth Din of America cannot be responsible for one its own having indulged in self-gratuity and misrepresentation vis a vis his published writings. Indeed, Broyde was also criticised in the Caulfield Shule case. I mentioned Rav Yona Reiss, having listened to him a number of times. Whether it’s him or someone else, that’s fine, but I liked him because he was a practicing attorney. Of course, one could bring the Av Beis Din, Rav Gedalia Schwartz, who I met at a Simcha here in Melbourne. He is very knowledgeable, older and very experienced, a lovely lovely man, and importantly very independent. He isn’t beholden to either the left or the right or a “cowboy” in any shape or form.
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Isaac: I agree about most of what you say, especially “unmitigated חילול שם שמים”, “open heter arkaos”, but don’t you see a problem with your suggested accreditation body in light of recent events: the “B” person, about whom you were quite wrong?
Moshe: What do you mean by “prohibit the use of a Zablo”
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“The defectors who simply couldn’t go on hiding and faking,” are empty because they have been raised in an environment that inculcates a need to feel constantly “high.” The antidote to this poison is not to try and outdo the other side with an even bigger high, but to reject the whole approach outright. “Lord get me high, get me higher,” sang Reb Shlomo a”h, but he was singing to people who were lost. People who had no commitment, who whose entire frame of reference was secular. This is still employed with some degree of success for that target audience by some in the kiruv industry. But that is not the approach for us. “Lama Nigara?” Because we thankfully, are not starting from ground zero.
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Isaac,
The need isn’t for further professional development as opposed to an external Dayan coming to Melbourne to deal with the “odd” commercial dispute, there is need for basic knowledge that being a “Rabbi” doesn’t give you the right to be biased and more.
________________
Moishe
your suggestion is a first class Oxymoron.
you wrote: a Rabbi who want to be Dayan should get accredited … In this way they would be subject to the rules and ethics of a professional body that could impose sanction if there is misconduct by them when performing their duties as a Dayan”.
Doesn’t the Shulchan Aruch have anything to say abut the ethics and duties of a dayan?
When a rabbi needs rules and ethics of a professional body that could impose sanctions on him if he misconducts himself (in simple words: if he is being dishonest or even worse…), he is not much of a rabbi.
תוספות קידושין דף מג עמוד ב, בד”ה השתא דתקון רבנן שבועת היסת
וא”ת, מ”מ למה לא יהיו העדים נאמנים לאחר שנשבעו לומר פרענום, שהרי שוב אינם נוגעים בעדות? ואומר ר”י דלכך אין נאמנים לאחר שנשבעו, משום דרחמנא אמר (דברים יט) על פי שנים עדים יקום דבר, דמשמע הנאמנים בדיבור בלבד, אבל העדים הטעונים לישבע קודם שיאמנו דבריהם, אין ממש בעדותם
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Decisions in secular courts are overturned all the time and I don’t think we can expect dayanim to navigate the rules of judicial behavior better than judges themselves. In fact you would expect secular courts to overturn the decisions of dayanim especially frequently: dayanim are not experts in secular law; they need to shoehorn halachic procedures into those expected by secular courts; and they are outsiders, without the benefit of collegial familiarity that may temper judges’ views of their colleagues’ decisions.
The fundamental problem is expecting a secular court to enforce the decisions of a Beit Din. Why should we have this uneasy hybrid where parties’ religious feelings are expected to get them to bring their cases to Beit Din, but not to accept the verdict? Treat someone who refuses a verdict the same way as you treat someone who refuses to come to the Beit Din; conduct the court without reference to the rules of secular arbitration; stop declaring that halacha depends on secular courts and you immediately lose almost all the potential for chillulei hashem.
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This is arbitration. The Rabbonim had guidelines which they did not follow!
The problem is that that they have to AT LEAST show their procedure is as fair as can be, not necessarily because Halacha mandates arbitration law but because there may be a D’Orayaso infraction of Kedoshim Tihyu
For starters, you follow procedure …
If it gets overturned on a technicality
then that’s a secular issue. But you don’t want people to basically be described as “unreliable” and I will leave that euphemism to your furtive imagination, which is what one of the Dayonim, who has past form was indeed described as. It’s a shande that there would be even a smell that a Dayan was unreliable … You can argue that Halacha is different, however, as Rav Schachter has said many times, you CANNOT have a situation where perceived bias is stricter amongst secular than Yidden!!!
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the only reason they do it through arbitration is thst if the loser doesn’t want to listen to the psak din the court can.
I do believe that most rabbanim would rather not have to o it through arbitration
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Shlomo,
They have no choice in many countries. If people agree to arbitration, the law will say “that’s fine, but follow these basic guidelines to make sure that the process is above board”. I don’t think the process is anti-halachic or contradicts a Zablo etc. What the Judge found here is a dereliction of duty. They didn’t follow the due process, and there was every reason to suspect that justice wasn’t *seen* to be done. The Halachic process should never ever be seen to be less in pursuit of Tzedek than a secular one. For this alone, I think the Dayonim (at least two of them) have lots to answer for. Indeed, one of them said as much in the Australian Jewish News. Personally, I am embarrassed. It makes what should be seen as a respectable and HIGHEST standard process look like a monkey process. The Judge was quite fair in her comments. I didn’t feel that she was biased in any way.
Note: that’s not to say that Amzalak was right and Koncepolski was wrong. The process was certainly faulty though. I would have thought that after the Caulfield Shule disaster, where the process and outcome were roundly condemned by the court, that Dayonim would approach with extra care. Sigh.
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I should add, that even if Halacha says that a Dayan is “not biased” but the law of the land sees such a Dayan as biased, then the Dayan should decline the case, and ask the parties to use another Dayan instead. Isn’t this a basic halacha of Dina D’Malchuso? It doesn’t mean that Halacha is “wrong” Chas V’Shalom. Halacha can proceed with a Zablo of three Dayonim Mumchim who satisfy both criteria. What is so wrong with that?
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is there an email i can send stuff to you? would rather not write it on here
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Sure, isaac@balb.in
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Jo
There isn’t any problem is expecting a secular court to enforce the decisions of a Beit Din, if the Beit Din plays according to the rules, and they don’t play g-d.
I don’t know what if knowledge in Jewish arbitration law, but let me tell you, that there isn’t much different from the civil law, and to say that according that according the jewish law a judge may be “a little bit bias” is plain BS.
Even an arbitrator can’t be not a little bias or if he wasn’t given permission to do so by both sides to the dispute.
According to Halacha, an arbitrator has no rights of his own, beside the rights he was given by both sides.
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I tend to agree.
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The false idea that secular court has greater strength than the knowledge of Torah heard from the mouth of its standard bearers distorts our faith and undermines the foundation that this is the Torah and there is no alternative, and only it shall determine the life of the Jew — and it is not subject to any ruler or judge except for the laws of the Torah alone. We hereby join with full hearts in the pain of those imprisoned, together with hundreds of thousands of Jews in every place. May their hands be strengthened, and happy is their lot, for they bear upon their backs the honor of Heaven and the honor of ancient Israel at a time like this.
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it is all the same everywhere:
http://www.bhol.co.il/Article.aspx?id=55162
בית המשפט המחוזי בבאר שבע ביטל לאחרונה בצעד נדיר פסק בוררות שניתן על ידי שלושה בוררים מבית דין צדק לממונות ‘הישר והטוב’ באשדוד – הרב חיים פסח הורוביץ, הרב בצלאל וקסלשטיין והרב אלעזר שטרן. השופט אריאל ואגו לא הסתפק בכך, ולאחר שביקר בחריפות את התנהלות הבוררים, קבע: “לא מצאתי להחזיר את פסק הבוררות לתיקון או להשלמה [כפי שמקובל במקרים מעין אלה. א.כ.] לאור הפגמים שנפלו בו, כמו גם אי הכרה בהם, ולו בדיעבד, על ידי הבוררים, כפי שעולה מההבהרות שהוצאו על ידם
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” לאור הפגמים שנפלו בו, כמו גם אי הכרה בהם”
You mean as in (AJN May 30, 2013):
“I stand by my original psak (ruling) that I gave then, and I don’t see any reason to retract it,” Rabbi Telsner said.
Rabbi Kaminetsky agreed with Rabbi Telsner that the beth din was not biased. “In my eyes the conduct of the rabbis was 100 per cent right,” Rabbi Kaminetsky said.
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Yes.
At least the dayanim have a sense of humor, the name of the Beth Din is ‘הישר והטוב’ !
Straight as the Tower of Pisa, and good for nothing.
Here are names of dayanim with a sense of humor:
According the midrash (בראשית רבה (וילנא) וירא פרשה נ סימן ג:) the chief dayanim in the Beth Din of Sedom were:
… קץ שקר, ורב שקר, רב מסטידין, רב נבל, וקלא פנדר…
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The Zablo has become a totally corrupted process. No serious Toveia or Nitba would opt to use the Batei Din in the United States.
Never use Dayanim that take payment, Schar Batalah is ok though.And dont you think its about time that Toanim were banned outright!?
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“The Zablo has become a totally corrupted process”
maybe it always was.
הרא”ש (סנהדרין פ”ג סימן ב), כותב
יש חסרי דעת טועין בדברי רש”י, ולמדין ממנו שהדיין יש לו
להפך בזכות אותו שבירר ועומד במקומו לחפות בדברים אשר לא כדין. ונהגו כמה אנשים לברור להם בעל תחבולות ונתלין בדברי רש”י שמשמע שיש לו להפך בזכותו. וחלילה וחס! לא דקדקו בדבריו
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Human nature hasn’t changed either!
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