Jewish Arbitration?

Here is a suggestion from Dov Silberman, as originally appeared in the Australian Jewish News in letters to the Editor.

” I would like to bring to your readers’ attention a set of draft rules that I have created for general public discussion regarding a Jewish form of arbitration.

The arbitrator must be Jewish and of good repute.

Nevertheless, the arbitrator is expected to act according to the Commercial Arbitration Act (Victoria) 2011 so as to produce an enforceable award.

I believe that these draft rules satisfy halachic and civil legal criteria. They are designed to publicly demonstrate a transparent and fair process, and to restore the confidence and trust in the Torah method of solving disputes.

It is based on a purely voluntary agreement between the parties, and therefore does not deal with many issues that I believe would confront attempts to create a commercial Beis Din with coercive powers to summons people to it.

I commend the rabbis for attempting that herculean task, and trust that they will be able to achieve that end in the near future.

In the meantime, I would like to start a truly communal and constructive debate about what people actually want.

You can read my introduction at http://www.dovsilberman.biz/arbitration/jewish-arbitration/ and the actual rules at http://www.dovsilberman.biz/arbitration/jewish-arbitration-rules/ ”

DOV SILBERMAN
Lawyer and Nationally Accredited Mediator
Associate ACICA (Australian Centre for
International Commercial Arbitration)
Email: mail@dovsilberman.biz

Author: pitputim

I've enjoyed being a computer science professor in Melbourne, Australia, as well as band leader/singer for the Schnapps Band over many years. My high schooling was in Chabad and I continued at Yeshivat Kerem B'Yavneh in Israel and later in life at Machon L'Hora'ah, Yeshivas Halichos Olam.

14 thoughts on “Jewish Arbitration?”

  1. DOV

    #8.2. The arbitrator must be Jewish…

    Can the a arbitrator be a women?

    Can he be a “somebody” that is Jewish by birth, but not a “Shomer Shabbat”?

    Where did you find in Halacha that an arbitrator has to be Jewish?

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    1. Dovid

      As usual, you have raised contentious issues, which are discussed by poskim.

      You do not need me to give you the answers, you know them yourself. Are you really trying to sabotage this right from the beginning?

      However, i did consider your points when preparing the rules.

      In response to your first question -can the arbitrator be a woman? As you are aware, there are five places in the Gemara (I can get your readers the references later – its Friday afternoon) where Tosafos (early middle ages) discusses a woman judging – principally on the Deborah question. In turn there are many interpretations of what they mean. As you are aware, not everyone is against women judging.

      And we have to consider that in the judicial halachic system, there are four levels of judges – Mumcha lerabim, mumcha, gemir, hedyot – recognised expert, expert, learned and layman. And in turn that depends on whether they are judging as 3, 2 or single tribunal.

      So the legal and halachic definition and status of an “arbitrator” is a whole question in itself – a man, let alone a woman.

      To emphasise this point, I have deliberately used non-gender specific language.

      With regard to a non-shomer shabat person, you will have to further define the definition for me to answer, as you are aware of current thinking regarding that concept.

      With regard to non-jewish – you know very well that shulchan aruch allows it in certain circumstances.

      However, we are trying to organise a system in which all the participants share common cultural values, so for the participant’s comfort, I have suggested that the arbitrator be jewish – I think that is what the the parties themselves would want.

      It’s erev shabbos, i can’t write much more quickly, but I would encourage people to read the first few paragraphs of my introductory article. No-one is forcing anyone to do anything. My system allows the parties themselves to make important decisions on issues such as these.

      i just want to make the process easier and fairer and to obtain an outcome so that both parties will be happy/satisfied and can get on with their lives.

      Have a Good Shabbos

      Dov Silberman

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  3. David, you’ll be glad to see that our rabbis have no issue with women being appointed. (At least the Melb ones.)
    >>
    The Rabbinical Council of Victoria (RCV) has announced the appointment of Rachel Mihalovich to the role of Executive Director.

    Mrs Mihalovich comes to the role with extensive experience in Marketing & Development and has had prior experience in corporate roles with BAE Systems and in Israel with Excalibur Systems and Softkey.

    RCV President Rabbi Meir Shlomo Kluwgant said: “The RCV’s capacity to provide religious leadership to our community is significantly enhanced with this appointment, especially at this critical time of strategic growth and planning. Rachel has had an excellent history of improving internal business processes and a strong track record of directing successful community activities, events and fundraising initiatives”.

    Mihalovich said that she sees tremendous opportunity for the Rabbinical leadership to foster closer interaction with families and youth in the Victorian Jewish Community, as well as promoting harmonious multicultural relationships.

    “I see the immediate challenge as becoming more engaged with our community, and stimulating an environment where the RCV promotes qualitative and meaningful religious and rabbinical leadership.”

    Would this be a first for a Chassidic (CHabad) controlled rabbinical organisation?

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  4. Mordy. I can’t believe how you could be so blinkered and narrow minded.
    Rachel Mihalovich’s role is not to control anything but to make sure that the programmes conducted by the RCV be coordinated and run efficiently.
    To project an effective and positive public relationship out to the public and to make the public aware of the various facilities the RCV offers.
    There is always a business aspect of even religious institutions and organisations where a woman can play an important part.
    There are many rabbinic organisations around the world where women run the office and business part.
    Furthermore, for you to suggest that the RCV is a ” Chasidic (Chabad)” controlled organisation is ridiculous.
    Members of the RCV are from all if not most synagogues here in Victoria, and being Chabad is not a prerequisite .
    So as they say in French ” Huck nisht kayn chaynik” !!
    Try to be constructive Mordy., we have enough destructive people in our midst

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  5. Dov
    “As you are aware, not everyone is against women judging”.
    But I don’t think that there is an opinion that a women can’t be an arbitrator, as a women can’t be a judge or in a position of “Srara”, and the definition of a judge is a person that is able to force a person to appear in front of him, and an arbitrator can’t order people (against their will) to appear in front of him for arbitration. And that rule applies to a non-Shomer Shabat person, or a non-Jew.

    Do you know that arbitration as a way of settling disputes, is a late development in Jewish law?
    See here: http://db.tt/pc3rmO1g from page 109.
    _________________

    Mordy

    I wish her much success, but I don’t think that her job description and authority fall under the Halachic definition of “Srara” which is forbidden?

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  6. Dovid,

    A major concern that I had when formulating my rules, is that many people believe that to settle a dispute according to Halacha means that you have to go to a beth din, which means fronting up to a panel of 3 rabbis, whether an established beth din (please don’t come back to me quibbling what that means – that is not relevant now) or an ad hoc one, commonly called a zablo.

    For sure, that is the appropriate and G-d fearing thing to do.

    But it is not the only way. Depending on circumstances and appropriateness, Halacha (based on Shulchan Aruch Choshen Mishpat 3.2) mandates that the litigants themselves can contract to a procedure to settle the dispute by whatever means they like.

    When I say “by whatever means”, this can be interpreted liberally. It would not, of course, include a term that would break a torah law. But it does include the choice of a woman, non-shomer shabbat person, or even a non-Jew as arbitrator.

    Remember, in this particular “arbitration” procedure, everything is voluntary for both parties to the dispute. So I couched my rules in non-gender and non-religious specific terms to allow for the possibility of a woman, an intersex, a non-religious, or even a non-Jewish, arbitrator, if that is what both parties want.

    However, this whole procedure is designed for people of any and all Jewish persuasion ie anyone identifying with any section of the Jewish community, who want to have an arbitrator who is cognisant and sympathetic of their cultural (including non-explicit) norms. So I made a value call that at the least the arbitrator should be Jewish.

    Next, I also want to allow the parties to have the advantage of being able to present a piece of paper to their friends, community etc. with some specific Jewish content. I made a value call to utilise the word “Psak”, a term which most people are aware of and are comfortable with.

    However, that term though has halachic, as well as cultural, ramifications. At the very least, I think most people would baulk at a non-Jew issuing a “Psak” – while having no problems with him/her issuing a decision, much like having no problems with a judge making a decision in a secular court of law.

    I had to therefore make a value call to define “Psak” in order to get it into the public arena to encourage public discussion and debate. I presume there are sections of the Jewish community that have their own definition of “Psak”. In effect, you have started a debate on that point.

    Nevertheless, I believe from a practical point of view, the term “Psak” as I have defined it, covers the vast majority of the likely scenarios in a real-life arbitration. Further to our private discussions, I like your idea of using a terminology such as “Hachlotat Hadin” instead of Psak, but we will have to investigate the halachic ramifications of that for the said piece of paper.

    But to repeat in any case and most importantly, because everything is voluntary, my rules themselves require that the parties and/or their religious and legal advisers direct their attention to varying the rules when drafting the arbitration agreement to start the ball rolling (Rule 13.1.3 and following). So if anyone has any concerns, it would be raised and dealt with then.

    As I understand it, the “late development” of arbitration in Jewish law really refers to the first half of the first millennium CE, quite a while ago. Of much more interest in that article are the 14 Jewish historical terms used for arbitrators down the ages (page 513ff)

    I hope that there will be eventually educational forums about dispute settling procedures for the whole community. Likewise, I have attempted to make this as practical and as user-friendly as possible for everybody.

    Dov

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      1. Danny

        I have looked at their site. With one exception as below, I cannot comment as to similarities or differences as there are no rules online and it has only a short general procedural overview.

        In my system, the parties are self empowered to choose any arbitrator that they both want, who may or may not be a Rabbi, whereas their overview says that JAMS nominates the arbitrator. As opposed to my rules, the overview does not specify if the arbitrator is a Rabbi or not, and if not, what are the procedures for the arbitrator to be made familiar with any relevant Jewish law.

        Regards

        Dov

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        1. Actually, there is one more difference that I see. I have the arbitrator playing an active role from the very beginning with regard to the formulation of the arbitration agreement and directions as to what the parties need to do prior to the hearing eg articulating the claim and defence, discovery, evidence etc. JAMS seems to have its Registrar doing all of that.

          I would have thought that efficiency would be enhanced by the arbitrator doing these things, similar to the rationale for modern case management by judges.

          Dov

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