By Dov Silberman
לזכר נשמת אבי מורי הרב טוביה זאב בן ר’ דוב בער הלוי זילבערמאן הכ”מ
In memory of my father, Rabbi Tobias Silberman obm
22 July 2013 – Reading of the Law Parshas Ekev Devorim 15 Av 5733
|יב וְהָיָה עֵקֶב תִּשְׁמְעוּן, אֵת הַמִּשְׁפָּטִים הָאֵלֶּה, וּשְׁמַרְתֶּם וַעֲשִׂיתֶם, אֹתָם–וְשָׁמַר יְהוָה אֱלֹהֶיךָ לְךָ, אֶת-הַבְּרִית וְאֶת-הַחֶסֶד, אֲשֶׁר נִשְׁבַּע, לַאֲבֹתֶיךָ.||Deuteronomy 7. 12 And it shall come to pass, because ye hearken to these ordinances, and keep, and do them, that the LORD thy God shall keep with thee the covenant and mercy which He swore unto thy fathers,|
|יג וַאֲהֵבְךָ, וּבֵרַכְךָ וְהִרְבֶּךָ; וּבֵרַךְ פְּרִי-בִטְנְךָ וּפְרִי-אַדְמָתֶךָ דְּגָנְךָ וְתִירֹשְׁךָ וְיִצְהָרֶךָ, שְׁגַר-אֲלָפֶיךָ וְעַשְׁתְּרֹת צֹאנֶךָ, עַל הָאֲדָמָה, אֲשֶׁר-נִשְׁבַּע לַאֲבֹתֶיךָ לָתֶת לָךְ.||13 and He will love thee, and bless thee, and multiply thee; He will also bless the fruit of thy body and the fruit of thy land, thy corn and thy wine and thine oil, the increase of thy kine and the young of thy flock, in the land which He swore unto thy fathers to give thee.|
|יד בָּרוּךְ תִּהְיֶה, מִכָּל-הָעַמִּים: לֹא-יִהְיֶה בְךָ עָקָר וַעֲקָרָה, וּבִבְהֶמְתֶּךָ.||14 Thou shalt be blessed above all peoples; there shall not be male or female barren among you, or among your cattle.|
|יג וְהָיָה, אִם-שָׁמֹעַ תִּשְׁמְעוּ אֶל-מִצְוֹתַי, אֲשֶׁר אָנֹכִי מְצַוֶּה אֶתְכֶם, הַיּוֹם–לְאַהֲבָה אֶת-יְהוָה אֱלֹהֵיכֶם, וּלְעָבְדוֹ, בְּכָל-לְבַבְכֶם, וּבְכָל-נַפְשְׁכֶם.||11. 13 And it shall come to pass, if ye shall hearken diligently unto My commandments which I command you this day, to love the LORD your God, and to serve Him with all your heart and with all your soul,|
|יד וְנָתַתִּי מְטַר-אַרְצְכֶם בְּעִתּוֹ, יוֹרֶה וּמַלְקוֹשׁ; וְאָסַפְתָּ דְגָנֶךָ, וְתִירֹשְׁךָ וְיִצְהָרֶךָ.||14 that I will give the rain of your land in its season, the former rain and the latter rain, that thou mayest gather in thy corn, and thy wine, and thine oil.|
|טו וְנָתַתִּי עֵשֶׂב בְּשָׂדְךָ, לִבְהֶמְתֶּךָ; וְאָכַלְתָּ, וְשָׂבָעְתָּ.||15 And I will give grass in thy fields for thy cattle, and thou shalt eat and be satisfied.|
Why create a set of draft Rules for Jewish arbitration?
The Orthodox Jewish world has been taking a battering recently over its perceived inability to settle commercial disputes between members of its own communities. It is highly visible, both in the Jewish media, and also in the general media.
As a member of the orthodox community, I am unhappy about the negative public perception this has created about the role of Jewish dispute settling procedures and the participants – and by extension, other orthodox Jews. I think it is most unfair, and we are in danger of throwing the baby out with the bathwater.
I am also concerned because I believe that a lot of the negative publicity and comments are on one hand being made by well meaning and well disposed friends who are unaware of the depth of the Jewish worldview and its philosophical and moral imperatives for having a Jewish problem solving system in place. These rest upon the very foundations of a belief in a Deity having a personal involvement with each and every person (Jew and NonJew), and the mental, emotional and psychological benefits that flow from such a perception and outlook.
On the other hand, there are clearly comments and pot stirring activities from people who have their own personal agendas to publicise, and who usually drown out constructive comments and questions with extreme and very often almost libellous criticism bordering on fanaticism. However, I do not at all want to dwell on that aspect, but to concentrate only on positive factors and ideas.
To show people that using Torah based arbitration is actually healthier for them
With that in mind, from my personal and professional experience, it is my belief that 99% of people are basically honest and want to do the right thing, except that unintended events cause them problems, which they try to resolve as best they can, but sometimes cannot do so easily.
I do not think you will find a lawyer who would not advise a client that if at all possible, avoid going to court, as you will be disappointed, you will not get what you want, and it will cost you time, money and stress usually disproportionate to the issues at stake.
I also wish to point out that I do not believe that there is anything inherently evil or corrupt about the Australian legal system. On the contrary, we live in what Jewish philosophy calls a “mamleches shel chesed” – an upstanding society governed by fair and moral laws and rules.
My father, Rabbi Tobias (Tuvia) Silberman OBM was a community Rabbi all his life. He was one of the most learned people in Australia, and was immensely popular with people he came in contact with. His congregations were what used to be called traditional, and he related to his congregants with a caring and deep understanding. At the same time, he articulated a strong and uncompromising stand for traditional orthodox Jewish values and beliefs, and the primacy of Torah and Mitzvos.
He passed away last year, on Yom Kippur 2012/5733, and his yahrziet will be coming up soon. It is customary to try to do something to commemorate the passing of people one loves and admires, and especially a parent.
I would like therefore to dedicate in my father’s memory this attempt to:-
- explain why Jews should settle their disputes, if they cannot do it by themselves (which halacha encourages them to do), by reference to the guidelines set out in the Torah, the Talmud, the Shulchan Aruch, the legal commentaries, and the philosophical works from throughout the ages, and
- assist in setting up a voluntary practical arbitration system which the Jewish community can use with confidence and trust, until a more sophisticated model which I understand is being developed, becomes a reality.
This project is for me, especially apt, as Yom Kippur is the Day of Atonement, which comes as a follow-on after Rosh Hashanah, the Day of Judgement.
I have already written a few blog posts earlier of the relationship between Truth, Justice and Peace, the differing approaches by the archetype peacemaker and the archetype judge (Aaron and Moses) , and on mediation generally.
I would like to briefly present a few positive ideas in relation to people going to a Jewish form of arbitration, rather than a purely civil form of arbitration, and certainly avoiding any court action if possible,
In other words, I am not going to talk about chilul hashem or bad publicity, and I am not even going to talk about the relative merits (if any) of any particular substantive law.
Belief in G-d’s attention to us personally, that G-d will give you what you really need and can use to live a happy and productive life.
I am going to talk about the belief that every believer in G-d holds, either explicitly or implicitly. Parenthetically, Judaism holds that even if one explicitly does not maintain such a worldview, a Jew still, deep down, really has that belief by virtue that he or she identifies themselves as Jews. As my father used to say from his pulpit, they consider themselves one more link in the everlasting chain of the continuity of the House of Israel.
Without enumerating here the large number of sources, it is an axiomatic fundamental of G-d’s Divine Providence that He judges us on Rosh Hashanah for the amount of sustenance that we are to receive for the following year.
However, that amount can be upped or downed during the year, depending on how we act. The Talmud gives the example in agrarian times that the amount of rain that was pre-determined for a person could either fall in a propitious or non-propitious time. In fact that is what it means “in its season” in the quote from this week’s Parsha above.
Nowadays, ask any self-employed or business person, successful or not, and they will tell you how so often money is made or lost on fortuitous events, out of their control. You can call it Divine Providence, karma or luck. But it cannot be ignored. Even people on fixed income can testify to having received windfalls or having strokes of bad luck causing them to spend what they would unotherwise have to.
Having a mindset that caters for dealing with events out of our control, or happening to us for whatever reason, does not mean that we can sit back and do nothing. Activity is still required on our part. Jewish philosophy calls this Hishtadlus.
Litigation (including arbitration) is simply another form of Hishtadlus. If someone has suffered damage and pecuniary loss, then to recover that, he or she may have to engage in the Hishtadlus of litigation.
But what if he or she was meant to lose that, or was meant to go through for a period of time, all the cost and stress etc associated with that problem, as a result of a Divine Plan?
How does one know what is the Divine Plan?
The only way is by putting in the appropriate Hishtadlus, in a setting where G-d has said that a proper decision will be made, which will result in the appropriate outcome.
Whatever the result will be what G-d intends. It will be the best result for you. You can feel self centred and able to face the future, without the inevitable emotional fallout, and the fractured personal relations, that occur without such a philosophy.
You will harbour no ill will towards the other party, it will not be your issue, it will be their issue.
As our rabbis said – when two people come to have their case heard, the judges should consider them both guilty. After the result, they should both be considered innocent – even the one found liable.
Because when true justice has been done according to the dictates of halacha (which comes from the word halicha – walking (with G-d)), then the results reflect what G-d wanted for the parties at this particular time.
What can be done immediately so people can trust in a proper result
Because of the importance of this concept, it is not surprising that our rabbis have been grappling with the technicalities and difficulties of setting up a commercial Beis Din here in Melbourne.
It is not easy and fraught with many dangers, particularly creating a Beis Din with coercive powers to summons people to it.
I am not setting up a procedure against that concept. Indeed, I support their effort whole heartedly.
What I am trying to do is to set up an ad hoc band-aid procedural solution which members of the community can voluntarily use and trust until we get a proper outcome by a community Beis Din.
It is a procedural form of rules which can be used in arbitration proceedings. I stress that they are given here for discussion purposes only, and are not meant to be used in any real life situation without appropriate rabbinical and legal and arbitrarial advice. The particular circumstances of each case are different, and they may not be appropriate for your circumstances.
Therefore, I invite comments by professionals – arbitrators, rabbis, lawyers and other users of litigation processes as to the validity or otherwise of them, and suggestions for improvements.
More importantly, I invite comments and suggestions by the general community for constructive feedback, whether you think these rules are a good idea and what improvements can be made
Here are some of the features of these draft Rules for a halachaclly based arbitration by a single arbitrator, as well as some of the perceived ills that these Rules attempt to cure.
- Voluntary Agreement – these rules are a first step to a more community based and trusted set-up, and are based on a purely voluntary agreement by two or more parties to have their dispute resolved by arbitration. There is no coercion, nor can one be forced to use them. The main features have to be confirmed prior to the arbitration agreement being signed. The parties by consent can change their minds about anything as the arbitration progresses. The coercive features only come into play to ensure fairness between the parties if one party (usually who is seeing that they are losing) wants to sabotage the process.
- Experience of the real world/expertise – the pool of arbitrators has been expanded so that only one arbitrator is required, who need not be rabbinically qualified. The major requirement is that the arbitrator must be Jewish, of good repute and competent.
- Knowledge of Jewish and civil law – the parties can be represented by a person to present their legal case as strongly as possible, and a person to present their halachic case as strongly as possible, with the arbitrator being able to consider all four positions (two parties each having a separate legal and rabbinic adviser if they so desire) and decide on equitable grounds. In addition, independent expert witnesses can be called to advise on legal and halachic grounds.
- Interplay of halacha and civil law – . surprisingly, this should not be contentious. I have based these rules upon Victorian law and procedure, especially the Commercial Arbitration Act (Vic) 2011 (“the Act“) . The Act contemplates this very situation where there are two conflicting systems of law. One is entitled to cherry pick aspects of either law. This will be spelt out in the arbitration agreement.
- Transparency and procedural fairness – this has been spelt out in the rules.
- Open to everybody – all Jews (not just orthodox) and Non-Jews can be accommodated. The procedures and awards must be in alignment with the civil laws of the land. There is no coercion to use lawyers or rabbinical advocates. If requested, the arbitrator can rule using equitable grounds in each system of law. Unrepresented litigants are treated no differently than unrepresented litigants in any other arbitration.
- Bias by the arbitrator – because of the proportional smallness of the community, there is likely to be two degrees of separation between three Rabbis/arbitrators and a party. The availability of arbitrators is widened, such that there is only one arbitrator, who must be Jewish, competent, and of a moral calibre that the parties willingly agree to accept the judgement. There are clauses, based on the Act, which deal with any perceived bias and advising the parties of prior knowledge and dealings with the other party..
- Cost - arbitration is usually faster and cheaper than court, and these rules increase the confidence in the process. The costs should be what would be in a standard arbitration.
- Interest and costs for the successful party- these are vexing and important questions, and are to be addressed right at the beginning when entering into the arbitration agreement.
- Ensuring that the arbitration will not be hijacked by a party reneging – once an agreement has been signed, then there are punitive measures in place, including hearing the case without certain evidence being used, not in a party’s presence etc – all taken from the Act, so the innocent party can be assured of a decision being given.
- Privacy – as in every arbitration, the parties can decide what can be made public, and what cannot.
- Reasons for a halachic judgement and a secular award – they have to be given, unless the parties agree otherwise. This is actually a feature of the Act.
- Finality and enforcement – there will be an award solely for use of enforcement through the civil system if necessary, just like any other arbitration award, and a halachic judgement for personal reasons and if necessary, for use within the community. Again, privacy issues may prevail, and this is to be discussed at the beginning.
What to now?
These rules are, I repeat to be used as a starting point for discussion and improvement. That is why I have also put them up in word and .pdf form.
Please feel free to download them, but I repeat that if you want to use them for anything in real life, they must be created afresh by a lawyer for use in particular circumstances. They are of a general nature and your circumstances may require something else entirely.
It is to generate public discussion, and as mentioned above I would appreciate if not only arbitrators, lawyers, rabbis, students, and other persons having a professional interest in this field would comment and discuss this, either online or privately. More importantly, I would appreciate it if you, the users and potential users of the current system of dispute resolution, could tell me not only your experiences and whether you feel these rules would assist in the future, but also your suggestions for additions or amendments or problems with these rules, from a practical, as well as a legal and halachic, point of view.
I intend to follow through in the future with a commentary on how each rule comes into play, and from what it is based on, as well as articles and blog posts on individual topics, such as bias, the halachic concepts of peshara, peshara korev ledin, din, lifnei meshuras hadin (referred to in the draft rules), civil appeals, how a contract is viewed in halacha and civil law, etc
But please do not wait for these pages before contacting me. I invite you to contact me either online (to promote a discussion) or offline. I have not included a draft arbitration agreement at this time (the rules by themselves are a huge topic), although I have included in the rules certain minimum items I think are important, and I likewise invite your comments and suggestions.
DOV SILBERMAN BA, LLB
Lawyer and Nationally Accredited Mediator,
Associate ACICA (Australian Centre for
International Commercial Arbitration)
Updated 25 July 2013