Rethinking Pesharah An Argument for the Increased Role of ... · comprehend since the concept of res judicata, which as noted above is applicable under Jewish law, preempts parties

Rethinking Pesharah:

An Argument for the Increased Role of Mediation in the

Contemporary Beth Din

Independent Study-Fall 2011 Joseph Reich

Supervised by: Dean Michelle Greenberg-Kobrin Columbia Law School

Table of Contents

Introduction ............................................................................................................. 1

I. Legal Foundations of Pesharah .......................................................................... 4

A. Pesharah: A contrast to din......................................................................... 4

B. Pesharah as Arbitration and Mediation ...................................................... 9

II. Overview of the Contemporary Beth Din System .......................................... 11

III. Limitations and Problems Arising Under the Current Beth Din System ....... 14

IV. Mediation as the Ideal Form of Pesharah in the Contemporary Beth Din .... 23

A. Intro ........................................................................................................... 23

B. The Benefits of Mediation in the Beth Din Context .................................. 26

C. Limitations of Mediation ........................................................................... 28

D. A Proposal for Increased Use of Mediation in the Beth Din ..................... 29

E. Mediation as a Form of Pesharah.............................................................. 35

Reich-Pesharah Page 1

Introduction

For a number of the same reasons, along with several important different ones, that

Alternative Dispute Resolution (ADR) has become increasingly relied upon by parties within the

U.S. as an approach for seeking redress outside the civil court system, Jewish litigants, likewise,

often seek to resolve their disputes through religious arbitration.1 While many of the well known

incentives for opting out of litigation in favor of ADR, such as cost, expedience and

confidentiality are characteristic of the arbitration system at large and are by no means exclusive

to religious arbitration,2 the rather rigid halachic (Jewish law) requirement prohibiting litigation

in secular courts in turn obligates Jewish parties engaged in a dispute under most circumstances

to resort to a form of ADR.3

This restriction against litigating in secular courts, along with a number of other factors,

has ensured the continued relevance of Jewish arbitration panels, known as batei din (plural for

beth din), in the U.S..4 Under Jewish law, the beth din can apply a number of methods of

adjudication in settling disputes, and this article focuses specifically on understanding and

analyzing the different uses of a single adjudicatory method known as pesharah. Pesharah,

which literally means compromise, is viewed by many Jewish legal authorities as a favored

alternative to a Jewish court ruling, known as din.5 Colloquially, pesharah is presumed to be a

1 See infra Section IV (a).

2 Id.

3 It is important to note that the prohibition restricts a Jew from litigating against another Jew in secular court, but

there is generally a dispensation allowing a Jew to bring a civil suit against a Non-Jew. See infra notes 27 and 28

and accompanying text for a brief description of the halakhic prohibition of litigating in secular courts (issur

arkaot). 4 See infra Section II.

5 See infra notes 19-23 and accompanying text.


form of arbitration, which indeed it is, but in fact it can also be understood as representing a

method of mediation.6

This article argues that the predominant, if not exclusive, use of pesharah as a form of

arbitration by various American beth din institutions creates a number of procedural and

systemic limitations. Several of the limitations discussed below, such as certain restrictions that

apply to choice of law provisions, are peculiar to Jewish arbitration, while several others, such as

the lack of an appeals process, are symptomatic of arbitration in general. Regardless though of

whether a number of the flaws highlighted below emerge from arbitration generally, it is clear

that these shortcomings have an even more pronounced impact on religious arbitration. This is

due to the fact that Jewish litigants under most circumstances are required, as a result of the

aforementioned prohibition, to resolve their dispute through ADR, as they do not have the

discretion of opting for a civil court proceeding.

In evaluating the impact of the various procedural and systemic problems that arise from

using pesharah almost exclusively as a form of arbitration, I argue that many of these issues

could be remedied or neutralized to a large degree by shifting towards an increased use of

mediation by the beth din at the initial stages of a dispute. As part of a solution, I propose

various formal procedural mechanisms that can be established in order to facilitate the increased

use of mediation within the beth din framework.

Finally, aside from the significant practical benefits to be gained from formally

integrating mediation into the beth din adjudicatory process, I contend that mediation is also

preferable to arbitration since within the contemporary system it is better equipped to enable

parties to realize the theoretical ideals of pesharah. The Talmud and rabbinic authorities

promote pesharah, much like many American scholars do with mediation, as having the unique

6 See infra Section I(B).


potential of forming an enforceable agreement that unlike a civil court ruling, is consensual and

largely satisfactory to both parties.7 The potential of pesharah to achieve the lofty goal of peace

or “shalom” between parties is a virtue that is idealized under Jewish law,8 and under the

contemporary system can be more readily achieved through a formal procedural mechanism that

seeks to incorporate mediation into the beth din process.

Part I of the article relates to the legal foundations of pesharah and in particular focuses

on how pesharah differs from a traditional dispute resolved using din. Through evaluating the

procedural structure of pesharah, it will be demonstrated how it can be understood and used as

either a method of arbitration or mediation. Additionally, in considering the preferability of

pesharah under Jewish law, attention will be given to the starkly opposing views expressed by

the Talmudic legal authorities regarding whether the use of pesharah as a means of adjudication

is in fact a mitzvah (a positive commandment), is merely permissible, or is in fact prohibited. A

brief overview of the contemporary beth din system in the United States is provided in Part II,

which specifically addresses the process of initiating a beth din proceeding, as well as the

different methods offered for adjudication. Part III highlights several of the limitations resulting

from the use of pesharah strictly as an arbitration method, while Part IV shifts to addressing how

offering and encouraging the use of mediation as an initial method of dispute resolution would

neutralize a number of the significant systemic challenges that arise from relying on pesharah

solely as a form of arbitration. Finally, I outline a concrete proposal involving a procedural

mechanism that would either require parties at the very least to informed of and offered the

option of mediation, or alternatively mandate that parties attempt mediation prior to initiation of

arbitration proceedings.

7 Id.

8 Id.


I. Legal Foundations of Pesharah

A. Pesharah: A contrast to din

The Babylonian Talmud, a sweeping multi-volume work widely regarded as the foundational

Jewish legal text, discusses the laws pertaining to the Jewish courts and legal system in tractate

Sanhedrin.9 It is in this volume that the concept of pesharah is introduced as an alternative to

din, the traditional legal proceeding in which judges strictly follow the letter of the law in

providing a ruling. The Talmud, in its fragmented, conversational style, records the views of the

various scholars regarding the nature of pesharah as a contrast to din. Beyond laying the

groundwork for the procedural approach to pesharah, the views presented in the Talmud, along

with the vast commentary by secondary authorities, are critical for understanding how pesharah

is utilized and valued within the range of adjudicatory methods. Moreover, a close analysis of the

pesharah regulations demonstrates that this method can be construed as both of a form of

arbitration as well as mediation.

While the Talmud, in its typical disjointed manner, does not methodically list, as would a

statute or the Federal Rules of Civil Procedure, the procedural process or regulations surrounding

pesharah, it does record a number of disputes amongst the legal authorities that are quite

revealing as to the makeup of this legal process. In contrasting pesharah with din, the Talmud

uncovers several of pesharah’s fundamental characteristics, which largely highlight how

pesharah functions as a form of ADR. Throughout the lengthy exposition of the procedures of

pesharah however, the Talmud and the commentaries continue to revert back to the question of

whether in fact pesharah is an offshoot or a variation of din, or is in fact an independent method

of adjudication.

9 For a general background on the history and role of the Talmud in Jewish law, see Stephen Wald, Talmud

Babylonian, Encyclopedia Judaica 2nd

Ed. (2007).

Available at http://www.encyclopedia.com/Encyclopaedia+Judaica/publications.aspx?pageNumber=1


An analysis of the various stages of the Talmud’s discussion of pesharah is necessary for

understanding the method’s critical features.10

First, there is a dispute amongst Tannaim

(Mishnahic era scholars) regarding whether pesharah can be performed by a single adjudicator

or whether it requires three judges, as is necessary for din.11

The Talmud interprets the opposing

views regarding the number of people required to perform pesharah as being dependant on the

more fundamental question of whether pesharah is legally linked with din. Meaning at this stage

the Talmud assumes that Rabbi Meir, who requires three judges for pesharah, understands that

the principles and procedures of pesharah are modeled off of din. The Rabbis though, contend

that pesharah can in fact be performed by a single person since its rules and procedures are

independently constructed, as pesharah is not viewed as being formally related to din.

Ultimately, the law on this issue follows the view of the Rabbis12

and therefore pesharah can be

administered by a single person, which again strongly implies that pesharah resembles a form of

ADR and is not a subset of din.13

The question of whether pesharah is a form of din or a separate method analogous to

ADR can be also be understood as the root of the disagreement amongst rabbinic authorities

regarding whether parties can opt for pesharah even after they have already received a ruling

through din. In general, a ruling by the beth din in a case is final and therefore unless there was a

substantive error, known as a taut, the case cannot be overturned or invalidated through a

10

For the main Talmudic discussion relating to pesharah, see Sanhedrin 5b-7a. 11

Id. at 6a. 12

Tur, Choshen Mishpat 12:7. See, Yad Ramah 6a, arguing that even according to R’ Meir who requires pesharah

to be performed by three judges would agree that a pesharah performed by a single judge would not be invalidated. 13

Even according to the view of R’ Meir who requires three judges for pesharah based on the link between

pesharah and din, it is not clear that pesharah should be viewed as being an offshoot of din. See Tosafot, Sanhedrin

6a, arguing that even according to R’ Meir the connection between din and pesharah is limited, by noting that in din

the ruling follows the majority vote of the judges, while in pesharah all three arbitrators must agree in order for a

ruling to be valid. While Tosafot does not explain the reasoning behind this distinction, it would make sense that

pesharah which is defined by consensual agreement would require a unanimous ruling.


subsequent ruling.14

For this reason, Rabbi Shlomo ben Avraham, a 15th

century scholar

understands that pesharah performed after din is automatically nullified and he analogizes the

use of pesharah in such an instance to a ruling which is made in error, which is also

automatically voided.15

Conversely, there are other authorities that contend that pesharah can in fact be used

even after a ruling is issued through din.16

On one level the latter view is difficult to

comprehend since the concept of res judicata, which as noted above is applicable under Jewish

law, preempts parties from re-litigating a case and therefore it should not be possible to engage

in pesharah after a final ruling. In order to resolve this difficulty, it must be understood that

pesharah, according to this view, is a completely different vehicle of adjudication and therefore

can be initiated by the parties even after din has been completely exhausted. The use of

pesharah under such a circumstance is not considered a “re-litigating” of the case for purposes of

being considered null and void, since such a restriction only applies when parties seek out a

second ruling through din.

Another point in the Talmud’s discussion which highlights how pesharah is

fundamentally different from din is the requirement that parties engaged in pesharah perform a

kinyan.17

Such an act, unsurprisingly, is not required when parties obtain a judgment through

din, as in din it is unquestionable that the judges can impose a ruling on the parties irrespective

of their acceptance of the judges’ authority through a kinyan.18

It is especially interesting that

14

Sanhedrin 33a; Tur Choshen Mishpat 25:1. 15

Shut Maharshach 3:14. 16

Shiltei Giborim, Sanhedrin 1:1. 17

Sanhedrin 6a. 18

Id. at 6a. A kinyan is a formal act involving the legal transfer of an object between the judges and the parties that

is used in this context as a means for the parties to express consent to adhere to the outcome of the case. For an a

discussion on the mechanics of kinyan and its underlying role in effectuating transactions in Jewish law, see Rabbi J.

David Bleich, The Metaphysics of Property Interests in Jewish Law: An Analysis of Kinyan, Tradition 43:2

(Summer 2010).


according to certain commentators, a kinyan in pesharah is not required if three individuals are

administering the pesharah.19

The obvious implication is that, as discussed above, the opinion of

R’ Meir who requires three in order to perform pesharah, is that pesharah is a subset of din, and

therefore like din, the eventual outcome of the pesharah is binding even without the use of a

kinyan.

Aside from analyzing of pesharah as a form of ADR through the prism of the specific

procedural differences between pesharah and din, it is worthwhile to also consider how the

Jewish legal system explicitly expresses the objectives of pesharah and its desirability (or lack

thereof) as an alternative to din. In direct contrast to the Talmud’s characteristically oblique and

incomplete discourse on the procedures and regulations of pesharah, the question of whether

pesharah is a preferred method of adjudication is addressed in a strikingly direct manner.20

The

answer provided is rather complex though, as the three views presented range from: (a) Pesharah

is prohibited to be performed by a judge (but can be performed by non-judges), since din is the

exclusive method of adjudication, (b) Pesharah is permissible, but it is not necessarily more

preferable then din, and (c) Pesharah is a mitzvah, meaning pesharah can be performed by

judges and is preferable to din.

Reconciling the wide gulf that divides the opposing views concerning whether pesharah

is prohibited or whether it is a mitzvah, requires an understanding of the differing perspectives on

the goals and objectives of pesharah. The opinion of R’ Elazar ben R’ Yosi Haglili which

prohibits judges from performing pesharah, considers justice based solely on the law to be the

supreme objective of the legal system and as such it demands uncompromised fidelity.21

Within

this extreme perspective, there can be no allowance for pesharah within the beth din, since the

19

See Reuven Margoliyot, Margoliyot Hayam, Sanhedrin (1977) (citing opinion of Sefer Ha’agudah 48:3). 20

Sanhedrin 6b-7a. 21

Id. at 6b.


effort to engender good will between the parties by arriving at a decision that considers factors

beyond the legal merits automatically undermines the ability to achieve a purely just result. This

view heralds Moses, who served as the chief judge and purportedly exclusively decided cases

through din, as its paradigm.22

At the same time, even this restrictive approach acknowledges

that Aaron, who was not a judge, appropriately sought out the litigants prior to their initiating

proceedings in the beth din and resolved their disputes through pesharah. In the purely legal

perspective of R’ Elazar, the approach of Aaron, which seeks to produce peace between litigants

by crafting a settlement that is amenable to both parties, can only be tolerated outside of the beth

din framework as an extrajudicial approach, where it does not undercut or mitigate the

effectiveness of a completely meritorious decision through din.

R’ Elazar’s strict understanding of justice, which only recognizes the legitimacy of

pesharah outside of the formal legal system, is ultimately rejected by the rabbinic authorities.23

Instead, the law follows the opposite extreme position of R’ Yehoshua ben Korcha which

contends that pesharah is a mitzvah and derives support for this view from the verse prescribing

a system that “render[s] true and perfect justice in your gates.”24

While in its initial stages of

contemplation, the mitzvah of pesharah is understood to establish that pesharah at the very least

is the preferred, if not obligatory, method of legal resolution, the Talmud eventually concludes

that the mitzvah of pesharah merely requires that pesharah is offered as an option to litigants.25

This diluted version of R’ Yehoshua’s view, which again is unanimously accepted by the legal

codifiers, maintains that pesharah can be performed by judges in the beth din, and demands that

prior to beginning a legal proceeding the judges should inquire whether a party prefers to engage

22

Id. 23

Tur, Choshen Mishpat 12:2. 24

Zechariah 9:16. 25

Sanhedrin 7a.


in din or pesharah.26

While some commentators understand that judges should not try to

persuade parties to engage in pesharah any more then din, there are others who understand that

the entire purpose of this mitzvah is to encourage parties to use the alternative of pesharah before

going forward with din.27

Therefore, even in adopting this more subdued version of the mitzvah

of pesharah in which the parties are afforded the discretion opting for pesharah, there is still a

widespread view that pesharah is the preferred method of adjudication. Maimonides conveys

this sentiment quite explicitly when in describing the mitzvah of pesharah he emphasizes that

“every beth din that consistently performs pesharah is praiseworthy.”28

B. Pesharah as Arbitration and Mediation

The fact that it is a mitzvah to offer pesharah to litigants as an alternative option to din

and that it is considered to be the preferred method of adjudication by several authorities, in turn

makes it especially important to understand what pesharah entails. While pesharah is generally

viewed as analogous to arbitration, it will become clear that in fact it can also be applied as a

form of mediation or in the other extreme as a less formal variation of din. Understanding the

different applications of pesharah, and particularly its function as a mediation method, is

necessary in order to highlight how the mitzvah and ambitions of pesharah can be most

effectively applied within the contemporary beth din system.

The fact that pesharah is mainly understood as a method of arbitration is rather

straightforward, as the Talmud explicitly refers, in the context of comparing din and pesharah, to

26

There are different opinions as to whether the judges must mention pesharah first when inquiring whether a party

would like to proceed with pesharah or din. See, Beth Yosef, Choshen Mishpat 12:2, contending that the order does

not matter and that it is considered a fulfillment of the mitzvah of offering pesharah even if din is mentioned first.

Beth Yosef acknowledges, however, that Maimonides seemingly holds that pesharah must be mentioned first in

order for the mitzvah to be fulfilled. See Maimonides, Mishnah Torah, Hilchot Sanhedrin 22:4. 27

Sma, Choshen Mishpat 12:2 28

Maimonides, Mishnah Torah, Hilchot Sanhedrin 22:4.


a panel issuing rulings through pesharah.29

While it is not as readily apparent from the Talmud

that pesharah can also be understood as a method of mediation in addition to arbitration, there

are significant indicators that point to this dual nature of pesharah.

First, while the issue of kinyan, like the disagreement regarding the number of judges

required for pesharah, is on one level demonstrative of how pesharah differs from din and is

more akin to ADR, the details of the kinyan requirement also sheds light on whether pesharah is

viewed as a method of arbitration or mediation, or both. While the Talmud does not specify the

timing of the kinyan, the commentators present differing opinions concerning whether the kinyan

is performed by the parties prior to the pesharah proceedings or at its conclusion.30

If in fact the

parties are required to perform a kinyan prior to engaging in pesharah, it appears that the parties

are agreeing to be bound by the outcome of the pesharah. According to this view pesharah is

analogous to arbitration in which the parties must sign an agreement prior to the arbitration

acknowledging the enforceability of the panel’s decision.31

The alternative opinion, which only

requires a kinyan to be consummated subsequent to the pesharah proceedings clearly views

pesharah as a form of mediation in which a resolution is accepted consensually by the parties

only upon reaching a satisfactory agreement.32

Aside from the implications emerging from the timing of the kinyan, a more explicit

indication that pesharah can be used as a method of mediation is found in the commentary of

Rabbi Joshua Boaz, a renowned 16th

century scholar who authored several works, many of which

are inserted as explanatory commentaries within the traditional volumes of the Talmud. In his

29

Sanhedrin 5b. 30

See Tosafot 6a who who raises both possibilities regarding the timing of the kinyan. 31

See infra notes 29-31 and accompanying text. 32

Id. See Ira Yitzchak Kasdan, A Proposal for P'sharah: A Jewish Mediation/Arbitration Service, available at

http://www.jlaw.com/Articles/psharah3.html (analyzing how the Talmud’s presentation of pesharah supports the

notion that pesharah can serve as either arbitration or mediation).


work titled Shiltei Giborim, R. Boaz explains that pesharah can be performed through the panel

suggesting different resolutions to the parties, upon which the parties evaluate the suggestions

and decide based on their own will to accept such an agreement.33

In this approach, the judges

do not compel the parties to accept a resolution, but rather the focus is on appeasing the parties in

order to arrive at a mutually acceptable settlement. R. Boaz describes this form of pesharah in a

rather adulatory manner by acknowledging that is a highly important mitzvah that is able to

infuse peace between the parties.34

This version of pesharah described in Shiltei Giborim, which

demands that the parties voluntarily consent to a resolution proposed by the panel demonstrates

that pesharah can be applied as a method akin to mediation.

II. Overview of the Contemporary Beth Din System

The biblical commandment circumscribing litigation in secular courts can be understood

as the main impetus for the central role that that Jewish courts play in resolving disputes even in

the modern era.35

The severity related to this prohibition is stressed by several commentators

33

Shiltei Giborim, Sanhedrin 1:1 (cited by Shach 12:2). The context of R’ Boaz’s comment is his discussion of the

rule mentioned in the Talmud at San. 6b that under a circumstance in which din is being used, the judge cannot

suddenly opt to apply pesharah (even with the litigants consent), if the judge already knows how he will rule in the

case. The reason for this limitation is that a party who would have been the beneficiary of a ruling in din would not

want to opt for pesharah, which could result in a diminished award, if he knew that he would prevail completely

through the verdict of din. R’ Boaz qualifies this rule by stating that when a non-coercive form of pesharah, namely

mediation, is used by the judges then even after the judge has decided how we will rule he can still recommend that

the parties engage in pesharah. 34

Id. (“And if the judge provides them [the parties] with possible solutions for a compromise and they [the parties]

agree on their own accord to forgo certain claims by settling with each other, then even after there has been a ruling

of din it would be proper to pursue this approach, as long as there is no coercion, rather only consensual agreement.

This [mediation] is a great mitzvah as it brings peace between man and his neighbor, and such was the approach of

Aaron” [translation and bracketed text provided by author for clarity]. 35

Exodus 21:1 records God’s commandment to Moses that “These are the rules that you shall place before them.”

The Talmud Gitin 88b interprets this verse as requiring Jews to bring their disputes in front of the Jewish courts and

prohibiting them from going before idol worshippers to settle their claims. There is unanimous consensus amongst

rabbinic authorities that this prohibition circumscribes appearing before any non-Jewish court, even one is that not

comprised of idol worshippers. Tashbetz 2:290. See, Michael A. Helfand & Yaacov Feit, Confirming Piskei Din as

Arbitration Awards, 60 J. Halacha & Contemporary Society (Spring 2011); See Rabbi J. David Bleich, Litigation

and Arbitration Before Non-Jews, 34.3 TRADITION 58 (2000).


and can partially be understood as the motivation for preserving a formal court system that is

able to prevent Jews from violating this restriction. 36

In the United States, the beth din system is a decentralized system, comprised of

numerous panels that settle disputes between local Jewish residents. The panels range from

informal tribunals that do not have established regulations or guidelines to more formal courts

that have full time staff and fixed rules and procedures that are made accessible to prospective

litigants.37

The caseload varies significantly between the different batei din, and generally

includes both divorce and commercial disputes, although even the more established religious

courts will not receive more than a few hundred civil filings a year.38

There are a number of ways in which a case can be brought in front of a beth din. First,

parties, much like in the secular arbitration context, can insert an arbitration clause ex ante into

an agreement which stipulates that any dispute will be settled under the jurisdiction of a

particular beth din.39

Alternatively, if there is no arbitration provision in the parties’ agreement,

litigants interested in bringing their case to a beth din would be required to enter an arbitration

agreement, or shtar berurin.40

This agreement serves a dual function of both enabling the beth

din’s decision to serve as a recognized arbitration decision that can be enforced in secular court,

36

See, eg., Maimonides, Mishnah Torah: Hilchot Sanhedrin, 26:7 (Stating that those who violate the issur arkaot

“raise a hand against the Torah of Moses.”). 37

See, JOFA, Beit Din Comparison Grid, available at http://www.jofa.org/pdf/beidincompgrid.pdf (chart comparing

size and practices of various batei din); Beth Din of America (NY), bethdin.org; Chicago Rabbinical Counsel,

CRC.org; Rabbinical Counsel of California Beth Din, rccvaad.org; 38

Id., Beth Din Comparison Grid. The JOFA data reports that the BDA, widely recognized as the most active beth

din, has approximately 300 divorce filings (includes contested and uncontested). The BDA also receives

approximately 100 commercial dispute filings. Michael A. Helfhand, “Religious Arbitration and the New

Multiculturalism: Negotiating Conflicting Legal Orders” 86 N.Y.U. L. Rev. 5 (2011) (noting that “the number of

civil cases submitted for adjudication before the Beth Din of America – one of the more prominent rabbinical

arbitration court in the United States – has nearly doubled over the past eight years.”). 39

See, eg., BDA, Sample Arbitration Provision, available at http://bethdin.org/docs/PDF5-

Sample_Arbitration_Clause.pdf. 40

Id., Beit Din Comparison Grid (noting that all batei din listed require parties to enter into an arbitration agreement

in contested cases).


while also defining for the beth din the particular issue that it is ruling on.41

If for whatever

reason the parties do not enter into a shtar berurin, the party interested in pursuing its claim can

request the beth din to issue a summons or hazmanah to the other party.42

A party who receives

a summons can either respond by consenting to appear before the issuing beth din, or can

propose to hold the case in a different beth din.43

In the event that the parties are unable to agree

on a mutually acceptable beth din, then a panel can be formed through a process known as zabla,

in which each party selects an arbitrator on its own and then the parties jointly select a third

arbitrator.44

A number of batei din allow parties to use a choice of law provision in order to stipulate

the governing law that the case should determine the outcome of the case.45

With regards to

approach used by the beth din to decide the case, the two methods primarily relied upon are

pesharah and din.46

While pesharah allows the beth din to issue a ruling based in equity as

opposed to strictly following what the letter of the law dictates, pesharah kerovah l’din is a

hybrid method which requires the panel to decide in favor of a party based on the technical law

with only limited discretion to award remedies based on considerations that are beyond the strict

technical merits of the case.47

The method used varies depending on the policies of a particular

41

BDA, How Cases Are Brought to Beth Din, available at http://bethdin.org/cases.asp. 42

Id. 43

Id. 44

See infra Section III(4)(b) regarding the zabla practice and the problems it creates within the beth din. 45

See infra Section III(3). Such a provision is often entered in the business agreement between the parties or can

subsequently be stipulated by the parties in the arbitration agreement. There are restrictions on applying secular law

when it contradicts with Jewish law. See, eg., BDA, Rules and Procedures Section (3), available at

http://bethdin.org/docs/PDF2-Rules_and_Procedures.pdf 46

See supra Section II. 47

BDA, Rules and Procedures of the BDA, Section (3)(b), Note 1. (Noting that in “in Jewish law (din), the party

that proves the "truthfulness” of its case "more likely than not," as well as proving the Jewish law basis for its

entitlement, is qualified to recover 100% of the amount sought, whereas in compromise or settlement related to

Jewish law principles p'shara krova l'din such a party would not necessarily recover 100% of the amount sought,

depending on that party's conduct throughout the matter under dispute… Remedies also might be different. In a case

governed by the principles of p’shara krova l'din an award could require a public apology, or other remedies not


beth din, as some batei din have a default method that they will apply unless the parties stipulate

otherwise,48

while other batei din may retain discretion to decide the appropriate method to apply

irrespective of the preference of the parties.49

Finally, as will be explored more fully below, in

contrast to binding arbitration, the vast majority of batei din do not formally encourage

mediation or administer it as an initial method of resolution.50

III. Limitations and Problems Arising Under the Current Beth Din System

The need for a more formal and prevalent use of mediation within the beth din can only

be understood after examining the various flaws and challenges presented under the current

framework. While the predominant adjudicative methods used by the beth din, namely

arbitration in the form of din or pesharah kerovah l’din, are by no means intrinsically flawed,

there are several issues that arise from their application within the contemporary framework

which make it prudent to consider the advantages of alternative methods, such as mediation.

Before delving into the particular deficiencies of the current system, it is necessary to

note that while a number of the flaws discussed, as noted in the article’s Introduction, are

peculiar to Jewish arbitration, several others are not necessarily unique to the beth din universe,

but rather are symptomatic of arbitration in general. Pointing out these limitations however, is

not intended to result in a generic discussion concerning the pros and cons of arbitration vs.

mediation, but instead is meant to demonstrate the heightened impact of such impediments in the

required in Jewish law (din). Even in a case decided under p'shara krova l'din it is quite possible that one litigant will

triumph completely and be fully vindicated”). 48

See, eg., Id. (“The Beth Din will strive to encourage the parties to resolve disputes according to the compromise or

settlement related to Jewish law principles (p'shara krova l'din); however, the Beth Din will hear cases either

according to Jewish law as it is understood by the arbitrators or compromise (p'shara) alone, if that is the mandate of

the parties.”). 49

See, eg., CRC, Agreement to Mediation/Arbitration,

available at http://www.crcweb.org/AGREEMENT%20TO%20MEDIATION.pdf. 50

See, infra Section IV (A).


Jewish context where a litigant is by and large prohibited from filing claims against another

Jewish party in civil court, and is thus forced to live with the various drawbacks of engaging in

religious arbitration.

The fact that in the secular context a litigant is typically afforded the opportunity, at least

when there is no clause in an agreement mandating the use of arbitration, to weigh the benefits

and the various costs of each adjudicative method before entering into arbitration, in turn enables

a party to avoid the negative aspects of arbitration in a situation in which a different resolution

method, such as litigation, appears more advantageous. Since the Jewish petitioner, due to the

aforementioned prohibition against litigating in secular courts, often does not have such a choice,

the disadvantages posed by arbitration demand special attention.

(1) Lack of Requirement for Panel to Explain Decisions Undercuts Transparency

As a general rule, upon issuing a ruling a beth din does not provide the parties with the

reasoning for its decision.51

The BDA, for instance, simply requires a summary of the award to

be issued to the parties in written form and signed by the members of the panel.52

Despite the

fact that a number of prominent Jewish legal scholars have stressed the importance of batei din

adopting the widespread practice of civil courts to provide reasoned decisions in order so that

parties will not suspect corruption but rather trust the integrity of the system,53

such a practice is

only followed by a small minority of dayanim.54

Since the BDA and other beth din institutions primarily perform arbitration through either

pesharah kerovah l’din or din, it could be argued that in failing to provide reasoned decisions

51

Rabbi Chaim Jachter, Gray Matter Vol. 3 237-242 (2008). 52

Beth Din of America, Rules and Procedure, Section 27 (available at http://www.bethdin.org/docs/PDF2-

Rules_and_Procedures.pdf). 53

Pitchei Teshuva, Chosen Mishpat 14:11; See also, R. Yitzchak Herzog and R. Ben-Zion Uzziel, Teshuvot

Mishpitei Uzziel (Chosen Mishpat 1). It is important to note however that despite the contemporary view amongst

some scholars for providing reasoned written decisions, the long standing custom of the beth din to simply announce

the award is recorded in the Talmud B. Sanhedrin 29a. 54

Jachter, at 242.


they are in line with the general practice of other established arbitration organizations which do

not require their arbitrators to provide reasons for an award.55

As noted above, however, the lack

of a civil court alternative in the Jewish context in turn creates a greater need for the beth din, the

sole venue for dispute resolution, to be perceived as transparent amongst its constituents.

A beth din proceeding is also unique from a secular arbitration proceeding in that a single

decision can often be predicated on various aspects of both Jewish and U.S. law, and as such it

could be difficult for the parties to comprehend the precise legal grounds on which a decision

was reached without a reasoned explanation from the panel. Moreover, there is a long standing

and widespread perception within the Jewish community that many, if not most, batei din are

corrupt and rule based on various biases.56

It would stand to reason that the lack of a

requirement to provide a reasoned decision significantly contributes to such a perception.

(2) Lack of Appellate Process

Yet another procedural impediment within the current beth din framework, is the inability

of a party to appeal a decision. A ruling by a beth din that is faulty on legal grounds cannot be

submitted for review to a higher court, as there is no appellate beth din system within the United

States.57

Even the BDA, which is relatively more progressive then other batei din by allowing

for the Chief Arbitrator to approve a modification of an award due to a legal error in the original

judgment, does not provide any recourse for a party seeking appellate review.58

As already noted

in a scholarly article addressing this issue, 59

the lack of an appellate structure not only leads

55

American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures Rule 42 (June 2009)

(http://www.adr.org/sp.asp?id=22440#R42). 56

Jachter, at 242. 57

While certain rabbinic authorities argue against the creation of an appellate court on grounds that it violates the

prohibition that restricts the imitation of secular practices, known as chukat hagoyim, the Israeli Chief Rabbinate in

1921 established the Supreme Rabbinical Court of Appeals which is responsible for reviewing rulings from the

lower batei din. See Jachter at 246-247. 58

Beth Din of America, Rules and Procedures of the BDA Rule 31. 59

Heshey Zelcer, Two Models of Alternative Dispute Resolution, 4 Hakirah 35 (Winter 2007).


litigants to become disenchanted with the beth din process, but it can also potentially lead

rabbinic arbitrators to not exert the appropriate effort and vigilance necessary to decide complex

cases, since they do not have be concerned with the prospect of their decisions being overturned

by an appellate court.

(3) Issues and Uncertainties with Choice of Law Provisions

There are numerous challenges that arise from the fact that cases brought to the beth din

by Jewish litigants involve issues relating to both Jewish and secular law. The first problem that

arises in this context is the fact that the there is a common view amongst rabbinic authorities that

choice of law provisions allowing parties to stipulate that the beth din apply secular law in

deciding all or part of the case, are prohibited under Jewish law.60

For this reason, there are batei

din which will not consider the choice of law preferences of the parties, and will decide the case

solely based on Jewish law. This restrictive approach of exclusively applying Jewish law to

resolve a dispute arising from an agreement that was partially or completely negotiated based on

secular law can clearly result in inequitable outcomes. Furthermore, parties that are aware of the

incompatibility between the law on which they negotiated and the strictly Jewish legal principles

applied by the beth din can potentially be dissuaded from bringing their disputes to the beth din

and will instead seek out a forum, such as a secular arbitration panel or even secular court, which

will resolve the dispute with the area of law desired by the parties.

Despite the widespread view that a choice of law provision under which parties opt to be

bound by secular law is prohibited due to the arkaot restriction, there are those Jewish legal

authorities which hold that such a provision is in fact permissible.61

In fact, the BDA, unlike

60

See Bleich supra at note 34 (“A judge who hears a case involving two Jewish litigants and renders judgment in

accordance with a secular corpus of law is, at the very least, guilty of aiding and abetting transgressors.”). 61

See, eg., Yaacov Feit, The Prohibition Against Litigating In Secular Court, Beth Din of America (2011), available

at http://bethdin.org/docs/Arkaos%20Article.pdf..


other batei din, does allow for parties to jointly stipulate that the dispute resolved through

applying a given body of secular law.62

However, in circumstances in which a specific area or

section of the law selected by the parties contradicts Jewish law, the BDA will override the

parties and preferences and apply Jewish law due to the arkaot prohibition.63

While parties that use the BDA are afforded the opportunity to have their dispute

resolved through secular law, there are significant areas, such as the laws of inheritance, in which

the contradiction between the secular and Jewish law would require the beth din to ignore the

parties’ preferences and decide solely based on Jewish law. As such, as discussed above in

connection with batei din that completely reject choice of law provisions, even under the BDA

approach there is still an element of uncertainty facing parties with regards to application of law

that can present difficult for a litigant trying to anticipate or weigh the likelihood of a given

outcome under the terms and governing laws of the agreement as initially contemplated by the

parties. Moreover, even in acknowledging that the acceptance of choice of law stipulations

within the BDA does in a hypothetical sense afford parties greater flexibility in ensuring that the

appropriate law contemplated under the agreement is used to decide the case, the reality, as

expressed by litigants within the beth din, is that the Rabbis deciding the case often lack the

requisite knowledge or familiarity with the relevant secular law and business customs relied

upon by the parties to be able to accurately incorporate such law into their rulings.64

62

Beth Din of America, Rules and Procedure, Sections 3(d),(e) (“In situations where the parties to a dispute

explicitly adopt a "choice of law" clause, either in the initial contract or in the arbitration agreement, the Beth Din

will accept such a choice of law clause as providing the rules of decision governing the decision of the panel to the

fullest extent permitted by Jewish Law.”). 63

Id. 64

See Zelcer, supra note 58, at 34 (noting that a survey of litigants who brought cases in front of the beth din

expressed a concern that BDA panelists often do not understand or properly apply the law and business terms

controlling the parties’ agreement).


(4) Potential Corruption and Unfairness in the Beth Din Proceedings

a. Toanim

There are two major policies which heavily weigh on the integrity of the beth

din’s operations. One issue that plagues the current beth din process is the prevalent use of

Jewish law advocates, known as toanim. Toanim are presumed to be knowledgeable in Jewish

law, and much like attorneys, toanim advise litigants and argue on their behalf in front of the

beth din. Unlike attorneys, however, who are bound by laws and ethics guidelines and could

incur penalties and disbarment for violations, toanim are largely unregulated in the sense that

there is no governing body which deters them from misusing their authority or acting unethically

within the beth din.65

This has led to the widespread complaint amongst both litigants and beth

din arbitrators that many toanim, through sustaining the business of certain arbitrators by steering

litigants to particular batei din, wield a considerable degree of influence over certain beth din

institutions. Due to this power, toanim often have the leeway to act unscrupulously in both

misrepresenting facts before a panel or even going as far as bribing certain panelists without

facing any repercussions.66

There is unsurprisingly no empirical evidence regarding the frequency in which toanim

are able to skew case outcomes, and while they likely impact certain beth din institutions more

than others,67

it is largely accepted as a reality amongst those familiar with the batei din that such

65

JOFA, Advocacy: Beit Din Divorce Procedures,

available at http://www.jofa.org/about.php/advocacy/guidetojewis/morefrequent (“Toanim (pl.) are advocates who

act as attorneys for people appearing before a beit din. Presently, Toanot (women) may only appear in batei din in

Israel and only after they have completed a rigorous course of training. In the United States, there is no uniform

training curriculum for toanim, nor are toanim accredited by any communal institutions. As there is no requisite

level of knowledge that toanim must evidence, and there are no ethical guidelines that govern their conduct, some

batei din will not allow toanim to advocate in the beit din”). 66

Id. 67

Due to concerns over the fairness and integrity of the beth din process the BDA does not allow toanim to

participate in proceedings. See, Rabbi Jonathan Reiss, Jewish Divorce and the Role of Beit Din (Jewish Action,

Winter 1999).


corruption is widespread.68

It is especially troubling that while one prominent Rabbi involved

with the BDA has openly lamented the impact that toanim have on the fairness of the beth din

proceedings, some of the other leading rabbinic figures have openly justified the use of toanim,

without denying their damaging impact, by arguing that without them the beth din would not

maintain a sufficient case load.69

In addition to the extent that such toanim are improperly

impacting the decision in a given case, the reputational damage that the batei din as a whole have

likely suffered as a result of enabling such dishonesty within an institution which is judged by its

integrity and fairness, is immeasurable. This is obviously yet another possible contributing

factor which would lead litigants to opt out of the beth din process, and rely on the civil courts

for handing their disputes.

b. Zabla

For many of the same reasons to be concerned about the impact of toanim on the beth

din proceedings, there is likewise reason to be troubled by the practice in which arbitrators are

selected to serve on the beth din panel through a process known as zabla. The practice of zabla,

which is originally recorded in the Talmud, affords each party the exclusive right to select one of

the three panelists, followed by which both parties mutually agree in their selection of the third

panelist.70

The panelist selected individually by one of the parities assumes a dual function in

which he is required to ensure that any possible argument in favor of that litigant is not

overlooked, while at the same time he is to remain objective and reach a decision based on the

merits.

68

Interview with Rabbi Herschel Schachter, Ami Magazine (Fall 2011) (Rabbi Schachter chastises other batei din

and leading Rabbis who have continued to allow toanim despite their corruptive effect on the proceedings. He notes

that “In the Shulchan Aruch it says that you’re not allowed to have a toain”). 69

Id. 70

Talmud Sanhedrin 23a. Shulchan Aruch, Choshen Mishpat 23:1. Zablah is an acronym for “Zeh borer lo echad,,”

meaning “This one (litigant ) picks one.”


The fact that each litigant is given sole discretion in selecting a panelist to advocate on

their behalf creates a situation under which a panelist can potentially seek to abdicate his role as

arbitrator and seek to decide their case in favor of their respective party. In fact, critics of the

zabla practice under the contemporary system have pointed to the fact that there are clear

incentives for an arbitrator to adopt a favorable position towards the litigant that selected him.71

Each litigant, for instance, is responsible for compensating “their” arbitrator for both the time

served deciding the case, as well as for private meetings in which the litigant presents the

arbitrator with arguments that support the litigant’s claim.72

A survey of litigants who have

come before a beth din and experienced the zabla process indicates that parties believe that such

a process can undercut the neutrality of the panelists and that some parties would favor a system

in which parties have no role in appointing the arbitrators.73

The BDA, which has made a concerted effort, especially in comparison to the various

other U.S. batei din, for setting policies that ensure fair and objective proceedings, has

implemented a limited zabla process which seeks to preserve a lack of bias amongst the panel.

Under the BDA rules, the Av Beth Din, the senior officer of the court, is responsible for

appointing the arbitrators to serve on a given panel from a preapproved list of BDA eligible

arbitrators.74

The parties do not have the right to each select an arbitrator, as is done under the

traditional zabla process, but rather the Av Beth Din at his own discretion can elect to solicit

71

Interview with Rabbi Herschel Schachter, supra at note 67. (“The zabla system [of choosing dayanim by each

party choosing one judge] is no good. The borer will sometimes say things that are not true. The party tells him

something in the private session, where he is being paid by the hour, and he repeats what he has been told, and then

in the next session we find out that it’s not true. Better to just have one person that both trust.”). See also, Yechiel

Gene C. Colman, Ensuring Enforceability of Beis Din’s Judgments, The First Annual Comparative Law Conference

Justice & Jewish Law, May 3, 1998, at 2, available at http://www.jlaw.com/Articles/Beisdin3.html 72

Id. 73

Zelcer, supra note 58, at 29. 74Beth Din of America, Rules and Procedure, Sections 1(d),(e).


recommendations from the parties.75

Finally, a litigant is also afforded the right to object to the

participation of the appointment of a particular arbitrator due to a concern that the arbitrator has a

financial interest or personal relationship that could impair his ability to rule impartially.76

While it is clear the BDA’s regulations restricting both the involvement of toanim and the

conventional zabla make it possible for parties to have greater confidence in the fairness of the

proceedings, it is important to keep in mind that most, if not all, other batei din have not taken

such measures. The continued reliance on toanim and the zabla process within these batei din

provides for parties to possibly be concerned about whether they will obtain a completely

neutral, unbiased ruling from these institutions.

(5) Enforceability of Beth Din Rulings in Civil Court

Another potential challenge arising from the reliance on beth din arbitration in order to

resolve disputes between Jewish litigants relates to the enforceability of such ruling. Rulings by

religious tribunals, such as a beth din, are by and large enforced as valid arbitration decisions by

United States courts under the Federal Arbitration Act (FAA).77

In recent years, however, there

has been reason to question whether a party engaged in a religious arbitration can safely assume

that the panel’s ruling would be enforceable in secular court.78

While arbitration rulings in

general, including those from religious institutions, receive a wide degree of deference from civil

courts,79

legislation has recently been proposed in a number of US states which seeks to limit the

75

Id. 76 Id, at Section 6(a),(b). 77

For a discussion on the treatment of religious tribunals in the courts under the FAA, see Michael C. Grossman,

Note, Is This Arbitration? Religious Tribunals, Judicial Review, and Due Process, 107 COLUM. L. REV. 169 (2007);

see also Caryn Litt Wolfe, Note, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration

Systems and Their Interaction with Secular Courts, 75 FORDHAM L. REV. 427 (2006). 78

For a general discussion on the legal and halakhic ramifications of seeking enforcement of a beth din ruling in

secular court, see Helfand and Feit, Confirming Piskei Din, supra note 33; see also See J. David Bleich, Litigation

and Arbitration Before Non-Jews, 34.3 TRADITION 58 (2000) . 79 See, eg., Brentwood Med. Assocs. v. United Mine Workers, 396 F.3d 237, 241 (3d Cir. 2005) (“[A]n award is

presumed valid unless it is affirmatively shown to be otherwise.”).


enforceability of religious arbitration decisions in civil courts.80

Such a law has already been

implemented in Ontario, which now prohibits family faith-based arbitration rulings from being

enforced in the secular courts.81

And while such legislation has yet to be proposed in New York or California, two of the

states which house the majority of the U.S. batei din, there has been at least one recent case in

New York in which the state court initially struck down a beth din ruling on public policy

grounds, as the court took issue with the consequences of applying Jewish law in forcing a high

school to reinstate and award back pay to a previously fired teacher.82

Legislation restricting the

enforceability of religious arbitration in the US jurisdictions could obviously render the beth din

a virtually powerless institution.

IV. Mediation as the Ideal Form of Pesharah in the Contemporary Beth Din

A. Intro

The various procedural issues, discussed above in Section III, which a party faces in

bringing a case to the beth din demand efforts to improve the beth din system. While batei din,

such as the BDA, have adopted certain measures that have likely improved the fairness and

transparency of the proceedings, there are still substantial issues, including the choice of law and

enforceability uncertainties, which could make parties question whether the beth din is an ideal

80

The legislation has thus far been proposed by state legislatures in Oklahoma, Texas, Wyoming, South Dakota,

Arizona and South Carolina. See, Michael A. Helfand, “Religious Arbitration and the New Multiculturalism:

Negotiating Conflicting Legal Orders” 86 N.Y.U. L. Rev. 5 (2011) (noting that “[b]y precluding courts from using

religious law – and thereby undermining the enforceability of religious arbitration awards – such legislative

initiatives hope to prevent groups from serving as competing independent legal orders.”). 81

Id. (quoting the proclamation of Dalton Mcguinty, the Premier of Ontario that there “There will be no religious

arbitration in Ontario. There will be one law for all Ontarians.”). 82

Matter of Brisman v. Hebrew Academy of the Five Towns & Rockaway, 887 N.Y.S.2d 414, 418-19 (N.Y. Sup.

Ct. 2008. The arbitration ruling was subsequently enforced through a reversal of the lower court’s ruling by the

Appellate Division in Brisman v. Hebrew Acad. of Five Towns & Rockaway, 895 N.Y.S.2d 482 (2d Dep‟t 2010) .


or even viable forum for adjudicating their disputes.83

As has been emphasized numerous times

in this article, the Jewish public’s perception of the beth din is highly important, as litigants’

dissatisfaction with the professionalism and sophistication of the beth din has unquestionably

resulted in otherwise halachic abiding individuals to seek resolution in civil courts, in violation

of the arkaot prohibition.84

While scholars have proposed different remedies for resolving some of the transparency

and procedural obstacles that parties face in securing and enforcing a ruling from the beth din,

most, if not all, of these proposals take a narrow and piecemeal approach by focusing on a single

issue.85

This article seeks to propose formalized incorporation of mediation into the beth din

system as a way of seeking a broader and more unified solution that cuts to the core of the

current problems facing the beth din’s viability as the forum of choice for Jewish litigants to

bring their claims.

As the amount of trials held in U.S. courts gradually declines, the use of mediation

within the US continues to increase and the scope of its usage has gradually widened to include

83

See Supra Section III. 84

See Bleich, supra note 50. (“To our shame, in many circles within the contemporary Jewish community, these

provisions of Jewish law [regarding the prohibition of arkaot] are honored in the breach.”).

While those deciding to circumvent the beth din process in favor of secular court are consciously or unknowingly

violating the prohibition of arkaot, the distrust of the beth din is so widespread that there are reports of recognized

rabbinic authorities who have privately advised Jewish litigants to bring their claims in secular court as opposed to

relying on the what they consider to be the corrupt beth din system. Interview with Rabbi Herschel Schachter, supra

note 40 (Rabbi Schachter comments that he has been informed that “there is a prominent talmid chacham in

Flatbush who tells his baalei battim to go to a secular court because they stand a better chance of yoshor [justice] in

a goyishe [non-Jewish] court than in a din Torah. If you ask him, he’ll deny it, but that’s what he tells people.

Unfortunately, I think that the comment about yoshor is true.”).

85 For examples of recent proposals see Helfhand, supra note 52 (As part of his proposed solution for balancing

increasing societal concern regarding “oppressive potential of religious majorities” with the interest of maintaining

continued enforcement of religious arbitration decisions, Helfhand argues that “1) courts should redefine the scope

of enforceability of religious arbitration awards by limiting the application of the public policy exception to vacate

religious arbitration awards and (2) courts should expand the application of unconscionability to void religious

arbitration agreements.”); Grossman, supra at note 49 (arguing that the “limiting effect of the religious question

doctrine on FAA and UAA review renders the statutes’ protections inadequate, giving rise to procedural due process

concerns” in the religious arbitration context).

With respect to a proposal for resolving the lack of transparency resulting from the lack of written rulings in the beth

din, see Jachter, supra note 26.


business, family and community disputes.86

Through mediation, which provides a less formal

and lower cost alternative to the court system, parties attempt to arrive at a mutually agreed upon

resolution to their dispute through facilitated negotiations by a neutral third party. 87

In the last

four decades, ADR has become a robust field of academic focus and scholars and practitioners

have developed several different methods of mediation.88

Within the religious realm, mediation has long been used to varying degrees within the

Muslim, Christian and Jewish communities.89

Mediation is more prevalent amongst Muslims

and Christians, as for the most Jewish adjudication leans towards more formal arbitration-like

proceedings.90

While mediation is out of the purview of most batei din, which primarily rely on

din or pesharah akin to arbitration, there are select batei din which do offer mediation.91

Unlike

certain state courts which often require litigants to attempt mediation prior to proceeding with

adversary proceedings in court,92

there is only prominent beth din, according to this author’s

knowledge, which actually requires parties to engage in mediation before going ahead with

86

Kimberlee M. Kovach, The Vanishing Trial: Land Mine On The Mediation Landscape Or Opportunity For

Evolution: Ruminations On The Future Of Mediation Practice, 7 Cardozo J. Conflict Resol. 27 (Fall 2005); John

Lande, Getting the Faith: Why Business Lawyers and Executives Believe in Mediation, 5 Harv. Negotiation L. Rev.

137 (Spring 2000) 87

American Arbitration Association, About Mediation,

available at http://www.aaamediation.com/faces/index.jspx;jsessionid=F41E68720A07A0C98CF5997180D4435E 88

See, eg. Zena Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (September

2000), available at http://www.mediate.com/articles/zumeta.cfm#bio 89

R. Seth Shippee, Blessed Are the Peacemakers‖: Faith-Based Approaches to Dispute Resolution, 9 ILSA J.

INT‟L & COMP. L. 239, 249 (2002).

90 Id., at 249. (“[T]he the Jewish approach to the resolution of conflicts is significantly more formal and

adjudicative than either the Christian or Islamic traditions.”). 91

BDA, Rules and Procedures of the BDA, Section 1(a), available at http://www.bethdin.org/docs/PDF2-

Rules_and_Procedures.pdf); Chicago Rabbinical Council (CRC), Din Torah-Halakhic Arbitration, available at

http://www.crcweb.org/dintorah.php 92 Dorcas Quek, Mandatory Mediation: An Oxymoron? Examining The Feasibility Of

Implementing A Court-Mandated Mediation Program, 11 Cardozo J. Conflict Resol. 479 (Spring, 2010) (Analyzing

regulations in Florida, Ontario and the U.K. allowing courts to require parties to attempt mediation prior to

litigating).


arbitration.93

In fact, the BDA, which has an affiliation with a particular mediator and as noted

earlier is considered to be at the forefront in developing “best practices,” does not have any

formal procedure through which parties are offered mediation before initiating their case.94

B. The Benefits of Mediation in the Beth Din Context

In addition to the many benefits that generally incentivize parties to select mediation

instead of litigation, such as cost efficiency and the opportunity to arrive at a mutually agreeable

solution,95

there would appear to be a whole other layer of advantages for opting for mediation in

the beth din context. Most importantly, mediation is in some sense a “catch all” solution that

resolves many of the procedural and due process issues encountered when engaging in the

standard arbitration methods used by batei din, including din and standard pesharah. To be sure,

despite its widespread usage in areas ranging from high stakes business disputes to family

matters, it is clear that mediation cannot necessarily be relied upon to resolve any and every type

of dispute. At the same time its undeniable efficacy in both circumventing and neutralizing

several of the particular beth din issues raised above in Section III, in turn makes it imperative to

consider possible ways for the beth din to both orient parties with the prospects of mediation and

formally and encourage parties to resolve disputes accordingly before resorting to the other

methods.

93 Chicago Rabbincal Council, Agreement to Mediation/Arbitration, available at

http://www.crcweb.org/AGREEMENT%20TO%20MEDIATION.pdf (CRC arbitration agreement required be signed

by the parties stipulates that “the parties have agreed and have asked Rabbi A.M. Abramson to first endeavor to

assist the parties to settle this controversy and to act as a mediator. The mediator may choose to terminate the

mediation at any time. At such time the arbitration process will proceed as described below.”). 94

Rabbi Adam Burner, Esq., who performs all mediations undertaken by the BDA, confirmed that to his knowledge

there are no formal practices regularly imposed by the BDA to initially direct parties towards mediation. Telephone

Interview with Rabbi Adam Burner, Esq. (Oct. 27, 2011).

According to Rabbi Shlomo Weissmann, Director of the BDA, the beth din will “generally encourage parties to

mediate, but to some degree the issue depends on how willing or unwilling parties are to go down that route.” Email

from Rabbi Shlomo Weissmann, Director BDA. (Oct. 4, 2011) (on file with author). 95

American Arbitration Association, supra note 59.


Mediation’s strength as an alternative to din or even pesharah in the form of binding

arbitration lies in the fact that it requires a resolution to emerge from a mutual agreement

between the parties, as opposed to a ruling imposed by the beth din. This in turn avoids many of

the procedural difficulties discussed above. For instance, the common practice in batei din to not

provide parties with written explanations of the ruling, which presumably has contributed to the

widespread perception of beth din as being a corrupt institution, is a problem that is avoided

entirely when parties engage in mediation. 96

Since both parties must consent before finalizing

an enforceable agreement, there is no concern of a party feeling perplexed or wronged by the

beth din’s decision, as can potentially be the case with din or arbitration.97

Similarly, the problems that arise in arbitration with respect to the choice of law selected

by the parties, both in terms of the possible halakhic limitations of applying secular law as well

the concern regarding the arbitrators’ ability and willingness to properly issue a ruling based on

secular law,98

are also neutralized when using mediation. In mediation the parties do not

necessarily apply any particular area in arriving at an agreement, rather the law may be a single

factor amongst other considerations contemplated during the parties’ negotiations. 99

Moreover, the zabla process for selecting panelists, as well as the widespread use of

toanim in beth din proceedings, two of the more controversial and problematic practices found in

most batei din, can be entirely avoided through mediation. First, the potential biases that arise in

arbitration through each party appointing their own panelists simply do not arise in mediation,

where a single mediator is either appointed exclusively by the beth din or is jointly selected by

96

See supra notes 26-31 and accompanying text. 97

Id. 98

See supra notes 35-38 and accompanying text. 99

See, eg., Leonard L. Riskin, Mediator Orientations Strategies and Techniques, Alternatives to the High Cost of

Litigation, Vol. 12, p. 111, (1994). (Noting that even under the evaluative-narrow approach in which the mediator

provides a non-binding resolution, the predicted outcome in court is a single consideration among several other

factors that could determine the mediator’s suggested resolution.).


the parties. A toain, likewise, has no role in mediation, as again the parties themselves must

agree to the resolution and therefore there is no benefit for a party to retain Jewish law advocate

who has a relationship with the beth din in order to try influence the decision.

Finally, mediation is not all impacted by lack of an appeals process as well as the

potential uncertainties in enforcing a beth din ruling. An appellate process is obviously not

relevant since any resolution proposed by a mediator is not binding on either party. There are

also no visible concerns in enforcing a mediation agreement, since unlike binding arbitration it

can be assumed that in mediation a party is only agreeing to a resolution that they feel is

beneficial to their interests.100

Moreover, the proposed legislation seeking to restrict the

enforcement of arbitration rulings in certain states would obviously not impact the enforceability

of agreements reached through mediation.101

C. Limitations of Mediation

While there are clear advantages to using pesharah as mediation as opposed to arbitration

or din within the beth din, it is important to be aware of the limitations and tradeoffs of

mediation. First, while mediation enables the parties to formulate an agreement that serves both

their interests and avoids the need to delegate binding decision making authority to an arbitrator,

it is often the case that parties are unable or unwilling to engage in the consensual dialogue that a

successful mediation requires.102

The conflicting interests of each party are often either too far

apart to allow for a “middle ground” compromise through mediation, or relations have been

100

It is unsurprising that studies have found that there are greater compliance rate for settlements arrived through

mediation compared with orders from litigation judgments. See, eg., Craig A. McEwen & Richard J. Maiman,

Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 Law & Soc'y Rev. 11 (1984); Roselle

L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29

Law & Soc'y Rev. 323,

325 (1995). 101

See supra noted 52-53 and accompanying text. 102

Samantha Hardy and Olivia Rundle, Mediation for Lawyers, 12-13 (2010) (Noting various circumstances in

which mediation will not be effective due to the parties unwillingness or inability to negotiate).


strained by the dispute to the extent that the parties are only willing to seek out the zero sum

game of binding arbitration.103

Similarly, one of the parties may legitimately feel that the merits

of the case are completely in their favor and that it would hurt their interests to concede to a

compromise in mediation, if instead they could potentially be awarded their full claim through

arbitration.

Moreover, while one might be amenable to reaching an agreement through mediation,

since it is required that both parties sign off on any arrangement there is a real possibility that no

agreement will be reached and the parties will be forced to proceed with arbitration in the beth

din. This uncertainty could lead parties to avoid mediation entirely in order so that they do not

run the risk of spending time and money without ultimately reaching an agreement. For these

reasons, it is obviously necessary that any measure seeking to promote the use of mediation in

the beth din does not foreclose parties from continuing to be able to use the alternative methods

which they may view as being more conducive towards resolving their dispute.

D. A Proposal for Increased Use of Mediation in the Beth Din

Recognizing that it can be particularly advantageous for litigants within the beth din to

attempt to reconcile their dispute through mediation, it is worthwhile to consider concrete

measures that could be implemented in order to facilitate the increased use of mediation. Any

potential plan would have to balance the primary interest of promoting the use of mediation and

making it more accessible to parties, while at the same time being cognizant of the fact that there

are instances in which it is simply more pragmatic or effective to use binding arbitration. With

that in mind, I attempt to balance these concerns below in suggesting a number of possible

solutions which would likely result in greater reliance on mediation within the beth din.

103

Id.


An initial consideration that should be raised is whether it is in fact necessary or desirable

to provide mediation between Jewish litigants within the beth din, as opposed to through an

independent mediation organization. There are a number of reasons why it would be beneficial

to seek to maintain the option of mediation within the beth din. Perhaps most importantly

though, offering mediation as an initial method of resolution within the beth din instead of in a

different forum, will likely ensure that parties that are unable to resolve a dispute through

mediation will then proceed to appoint a panel for arbitration within the beth din. By housing

mediation and all other adjudicatory methods within the confines of the beth din, it is more likely

that even if an initial attempt at mediation breaks down, parties will not necessarily be tempted

run off to the civil courts, since the beth din can swiftly arrange for an adversarial proceeding. As

such, the “one stop shop” approach could serve as an effective tool for preventing the violation

of the issur arkaot.104

Assuming that it is preferable to integrate mediation as an official offering within the beth

din, it is then necessary to establish formal guidelines for how mediation should be used. It is

important to keep in mind that currently, despite the lack of empirical evidence, there is little

doubt that the overwhelming majority of batei din exclusively offer binding arbitration, whether

in the form of din or pesharah kerovah l’din. Moreover, while the BDA is one of the few batei

din that does engage in mediation, it does not appear to have a formal process which ensures that

all parties are offered and encouraged to initially attempt mediation.105

104

By housing mediation in the beth din it also enables the beth din to issue summonses in order to compel a

recalcitrant party to participate in mediation or proceed with arbitration, and if need be issue a siruv, which serves as

a notice declaring that a party is in contempt of the beth din. An independent mediation organization or ad hoc panel

would likely be unable to exercise such authority. Telephone Interview with Rabbi Alan Abramson, Beth Din

Administrator, CRC. (Feb. 22, 2012). 105

Telephone Interview with Rabbi Adam Burner, Esq., Designated Mediator for the BDA (Oct. 27, 2011).


A first step towards increasing the accessibility of mediation in the beth din would be to

establish a designated group of qualified mediators from which the batei din could call upon in

order to oversee mediations. Beyond having undergone the standard training as a mediator, it

would be preferable, as others have noted,106

to specifically seek out Jewish mediators to be

included on this designated list. Using only qualified Jewish mediators would allow for parties

to receive input from a mediator who has familiarity with both Jewish and secular law and would

likely be able to better relate to certain aspects of the dispute.107

In addition to having an available roster of mediators available to any beth din offering

mediation services, it is perhaps most important for batei din to put in place formal procedures in

which parties are offered mediation services at the initial point of contact with the beth din. It

appears that only one prominent beth din,108

as noted above, has developed a practice that is

often found in standard arbitration agreements amongst secular parties,109

stipulating that both

sides agree to attempt mediation prior to proceeding with binding arbitration. This approach

guarantees that even parties that are not familiar with or have not considered using mediation

will at least attempt to reach an agreement with this method before going ahead with binding

arbitration.

106

Ira Yitzchak Kasdan, A Proposal for P'sharah: A Jewish Mediation/Arbitration Service, available at

http://www.jlaw.com/Articles/psharah3.html 107

Id. 108

See supra note 65. 109

American Arbitration Association, AAA Non-Binding Dispute Resolution Services Guide to Drafting Contract

Clauses, available at http://www.adr.org/si.asp?id=5683 (Advising that a standard arbitration agreement will include

a stipulation that “If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot

be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation

administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting

to arbitration, litigation or some other dispute resolution procedure.”); JAMS ADR, JAMS Clause Workbook: A

Guide to Drafting Dispute Resolution Clauses for Commercial Contracts, available at

http://www.jamsadr.com/clauses/ (JAMS, the largest private ADR organization, notes that

“It is common practice for a contract clause to provide for negotiation and/or mediation in advance of arbitration.”)


An important consideration, however, of imposing mandatory mediation in the beth din

prior to allowing parties to conduct binding arbitration, is that inevitably it will require parties to

incur the cost and time of a compulsory mediation session even in circumstances where one or

both of the parties have no intention of negotiating in good faith. This cost can be limited by

only requiring parties to attend a single mediation session before allowing either side to elect to

opt out of mediation and proceed with binding arbitration through either pesharah or din.110

Such an approach would be similar to the court mandated mediation practices of states,

some of which have dealt with this concern by limiting the amount of time or amount of

mediation sessions that parties are required to attend before electing to terminate the mediation

and proceed with litigation.111

While certain states have gone so far as to impose a “good faith”

requirement and allow the courts to issue sanctions to parties that do not comply with this

obligation,112

it would seems imprudent to implement such stringent requirements in the beth din

context where there are weak enforcement capabilities. Moreover, such regulations might lead

parties to avoid the beth din and choose civil court litigation in violation of the issur arkaot.

While a beth din policy ordering mandatory mediation would obviously increase the

overall participation in mediation and potentially minimize the various procedural and systemic

issues encountered in using beth din’s standard methods, a less rigid regulation might be more

pragmatic and feasible in light of a number of possible concerns with this proposal. First, a

110

There is no major beth din, according to the author’s knowledge, which has in place regulations defining the

extent to which parties must participate in mediation before being permitted to terminate the mediation and and

proceed with binding arbitration. The CRC Beth Din, which as discussed above imposes compulsory mediation in its

arbitration agreement merely states that “[t]he mediator may choose to terminate the mediation at any time.” Supra

note 65.

In practice, however, even the CRC will allow parties who refuse to attempt mediation to proceed directly with

arbitration. Telephone Interview with Rabbi Alan Abramson, Beth Din Administrator, CRC. (Feb. 22, 2012). 111

Indiana, for instance, allows courts to order mediation with the consent of the parties. The parties can only

terminate the mediation after two complete sessions. John R. Van Winkle, Mediation: An Analysis of Indiana's

Court-Annexed Mediation Rule, 25 Ind. L. Rev. 957, 964 (1992); 112

States with such laws include Indiana, Montana and Maine amongst others. Holly A. Streeter-Schaefer, Note: A

Look At Court Mandated Civil Mediation, 49 Drake L. Rev. 367 (2001).


policy that would not provide parties with any discretion in deciding whether to forgo mediation

could run the risk of alienating parties form beth din, and instead prompting them to bring their

claims secular court in violation of the issur arkaot. Second, even if parties are not dissuaded

from pursuing their claims in the beth din, there could be an additional concern of whether

forcing parties to relinquish their right to choose the resolution process they prefer by allowing

the beth din mandate an attempt at mediation in all cases is sound policy. A strong argument

could be made that it is the parties, as opposed to the beth din, that are in the best position to

assess the particular dynamics of their case, and they should therefore be given autonomy in

deciding what method would be most preferable and effective for resolving their dispute.

Finally, as scholars have pointed out, mandatory mediation could be understood as a bit of an

oxymoron, since compulsory participation undercuts the consensual and voluntary aspects which

are critical for creating successful mediation outcomes.113

An alternative to the mandatory mediation policy outlined above would be to implement

a policy that would encourage parties to undergo mediation but at the same time would leave the

parties with the discretion to make such a decision. While some batei din, such as the BDA, may

already informally promote mediation to parties, inserting a “check the box” option into the

standard beth din arbitration agreement that allows the parties to opt for mediation or binding-

arbitration would make parties more aware of the mediation as a viable alternative to the

traditional beth din offerings, instead of simply relying on a beth din representative to decide

whether to offer mediation to parties on an ad hoc basis.

A third possible approach that integrates both the mandatory and discretionary mediation

proposals discussed above would impose compulsory participation in mediation only in specific

113 In connection with mandatory mediation laws in the civil court context scholars have questioned whether

“imposing mandatory mediation impinges upon the parties' self-determination and voluntariness, thus undermining

the very essence of mediation.” Quek, Mandatory Mediation, supra at note 64.


contexts. For instance, it might make sense to have such a requirement in divorce cases where

settlement rates are extremely high and party satisfaction has been shown to be greater than in

adversarial methods.114

Success in commercial mediation is presumably more difficult to gauge

could vary by industry and the nature of the dispute, and as such it might not be prudent to

impose mandatory mediation in the business dispute context, but instead allow for party

discretion in deciding whether to attempt mediation before proceeding with binding arbitration.

While these proposals are part of an attempt to increase the use of mediation within the

beth din, it is obvious that there are other possibilities for achieving such a result which have not

been explored. Ultimately though, the main principles in guiding any plan to heighten the role of

mediation in the beth din would be motivated by the benefits that the parties stand to gain by

formally integrating pesharah in the form of mediation into the beth din, while at the same time

remaining conscious of the impingement on the freedom of the parties that results from imposing

mandatory mediation. The great difficulty in balancing these opposing objectives can be

somewhat remedied by only requiring parties to attempt mediation for minimal amount of

sessions before being allowed to opt for binding arbitration.115

While giving parties complete

discretion to decide whether to engage in mediation would obviously preserve the parties’

autonomy, such a solution could lead many parties who would be optimal candidates for

mediation to overlook such an option in favor of arbitration.

114

A number of studies point to the high rates of settlement and party satisfaction resulting from divorce mediation

as opposed to divorce adversarial proceedings. See, eg., Robert E. Emery, David Sbarra and Tara Grover, Divorce

Mediation: Research and Reflections, 43 Fam. Ct. Rev. 22 (2005) (noting that the study found that parents were

more satisfied with mediation than with adversary settlement six weeks after dispute resolution, a year and a half

late, and twelve years following the initial settlement. 115

Setting a clear participation standard is critical, as ambiguous standards of participation often result in one or

both of the parties from meaningfully participating in the mediation process. David S. Winston, Note and Comment,

Participation Standards in Mandatory Mediation Statutes: "You Can Lead a Horse to Water. . . .," 11 Ohio St. J. on

Disp. Resol. 187 (1996).


E. Mediation as a Form of Pesharah

In addition to a natural resistance towards institutional change, American batei din could

ostensibly be opposed to implementing measures that enhance the use of mediation due to a

concern that mediation does not represent a traditional method of adjudication under Jewish law.

As discussed in Section II, the laws concerning the Jewish courts mostly revolve around the use

of din, and to a lesser degree pesharah, by the courts. This article looks to highlight though that

a shift towards increased promotion of mediation with the beth din should not be understood as

an effort to replace the traditional methods of legal resolution established under Jewish law, in

favor of an untraditional method that happens to yield certain practical advantages. Rather, I

contend, that the use of mediation is in fact explicitly recognized and praised by legal

commentators as an alternative form of pesharah under Jewish law.116

Additionally, it is this

form of pesharah, which relies on the voluntary consent of the parties for a resolution as opposed

to a ruling of a third party arbitrator, that represents the ideal mechanism, as compared to

arbitration, for realizing the virtues of pesharah within the contemporary beth din.

As noted by one of the most renowned scholars on ADR,117

who also happens to be

familiar with the Jewish law, one must look no further then the comments of the Rabbis in Pirkei

Avot (Ethics of our Fathers), a Mishnaic text, to find the high esteem that Jewish law has for

compromise and consensual resolution of disputes, in stark contrast to din which is viewed as a

necessary evil.118

The commentary of Maimonides on the Mishna’s unambiguous preference for

a settlement achieved amicably by the parties is expressed emphatically in his statements that :

116

See supra Section II(B). 117

Professor Robert A. Baruch Bush is the Harry H. Rains Distinguished Professor of Alternative Dispute

Resolution Law at the Hofstra University Law School and along with Joseph Folger he developed the transformative

method of mediation that has become one of the central methods used by mediators. Bush, Baruch, and Joseph

Folger: The Promise of Mediation (Jossey-Bass, 1994). 118

Robert A. Baruch Bush, Dialogue And The Practice Of Law And Spiritual Values: Mediation And Adr: Insights

From The Jewish Tradition, 28 Fordham Urb. L.J. 1007 (2001) (quoting the statement of R’ Yishmael that “judge]


[The judge] must strive in all his cases to formulate a [compromise] settlement, and if he can

refrain from passing a verdict his entire life, constantly [facilitating] a fair settlement between the

litigants - how wonderfully pleasant that is!119

The great value assigned to pesharah in these foundational legal texts, along with the fact

that is possibly a mitzvah to for judges to encourage parties to perform pesharah instead of

din,120

all speak to the notion that Judaism places an extremely high premium on the reparative

and peacemaking capabilities of ADR. This article highlights that under the circumstances of the

contemporary beth din, it is often mediation, as opposed to binding arbitration, which embodies

the potential for actualizing the redemptive qualities of pesharah. In realizing this potential, it

would be in the best interests of their constituents for the batei din to take substantive steps

towards formally adopting and promoting mediation as the initial method of choice in resolving

disputes.

who refrains from handing down legal judgments [but instead seeks compromise between the litigants] removes

from himself enmity, theft and [the responsibility for] an necessary oath. But a judge who aggrandizes himself by

[eagerly] issuing legal decisions is a fool, wicked and arrogant.” (Mishna, Pirkei Avot [Ethics of our Fathers] 4:9,

reprinted in, Siddur Tehillat Hashem 222 (Nissen Mangel trans., Kehot Publication Soc'y 1978) [emendation in cited

translation by original translator]. 119

Id. at 1008 (quoting Maimonides' Introduction to the Talmud, 122-23 (Zvi Lampel trans., Judaica Press 1975)

[bracketed text inserted by the author for clarity]. 120

See supra notes 19-20 and accompanying text.

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Rethinking Pesharah An Argument for the Increased Role of ... · comprehend since the concept of res judicata, which as noted above is applicable under Jewish law, preempts parties