Why Jewish Arbitration?

לזכר נשמת אבי מורי הרב טוביה זאב בן ר’ דוב בער הלוי זילבערמאן
In memory of my father and teacher HaRav Tobias (Tuvia) Silberman OBM

Contents
Source
What is the advantage of a specific Jewish Arbitration regime?
Belief in G-d’s attention to us personally
What can be done so people can trust in a proper result?
Standard Arbitration Agreement


Deuteronomy 7.12 – 14 and 11.13 – 15

יב  וְהָיָה עֵקֶב תִּשְׁמְעוּן, אֵת הַמִּשְׁפָּטִים* הָאֵלֶּה, וּשְׁמַרְתֶּם וַעֲשִׂיתֶם, אֹתָם–וְשָׁמַר ה׳ אֱ-לֹ-הֶיךָ לְךָ, אֶת-הַבְּרִית וְאֶת-הַחֶסֶד, אֲשֶׁר נִשְׁבַּע, לַאֲבֹתֶיךָ. 7. 12 And it shall come to pass, because ye hearken to these ordinances*, and keep, and do them, that the Lord thy G-d 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-ה׳ אֱ-לֹ-הֵיכֶם, 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 G-d, 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.

Source: http://www.mechon-mamre.org

* Nachmanides (Ramban) comments that ordinances means monetary laws

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Background to the establishment of “Jewish Arbitration”

Having explained the advantages of arbitration as part of the resolution process, what is the difference between an arbitrator who will adjudicate a dispute solely according to Australian law and one who would take into account any relevant Jewish law?

We wish to stress that there is nothing inherently wrong with the Australian legal system.  On the contrary, we live in what Jewish philosophy calls a “mamlechet shel chesed” – an upstanding society governed by fair and moral laws and rules.

Dov’s father, HaRav 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 anyone with whom he came into contact. 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 Jewish values and beliefs, and the primacy of Torah and Mitzvot.

He passed away on Yom Kippur 2012/5773. It is customary to commemorate the passing of people one loves and admires, and especially a parent.

In anticipation of the first anniversary of HaRav Silberman’s passing (yahrzeit) in 2013, Dov initiated a discussion on his website to:

  1. 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 as set out in the core Jewish Texts.
  2. Assist in setting up at least one model of a voluntary  practical arbitration system which the Jewish community can use with confidence and trust.

This personal project was especially apt, as Yom Kippur, the day of HaRav Silberman’s passing, is the Day of Atonement, which comes as a follow-on after Rosh Hashanah, the Day of Judgement.

Dov had also 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. These are republished here.

In this section, we would like to briefly present a few positive ideas in relation to people going to a Jewish form of arbitration.

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Belief in G-d’s attention to us personally, that G-d will give us what we really need and we can use that to live a happy and productive life.

We are going to talk about the belief that every believer in G-d holds, either explicitly or implicitly. 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 HaRav Silberman used to say from his pulpit, they consider themselves one more link in the everlasting chain of the continuity of the House of Israel.

It is an axiomatic fundamental principle 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 a person’s pre-determined rain amount could either fall in a propitious or non-propitious time. That is the intention of the phrase “in its season” in the quote from Deuteronomy 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 incomes can testify to having received windfalls; on the other hand, people can have a streak of bad luck, causing them to experience unplanned losses.

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.

Persistent activity is still required on our part.  Jewish philosophy calls this “Hishtadlut”. Litigation (including arbitration) is simply another form of Hishtadlut. If someone has suffered damage and pecuniary loss, then to recover that, he or she may have to engage in the Hishtadlut of litigation.

However, what if the Divine Plan was that he or she was meant to lose money?
How does one know what is the Divine Plan?
Being persistently active, that is, having the appropriate Hishtadlut, in a setting where G-d has said that a proper decision will be made, will result in the appropriate outcome.

The outcome will be what G-d intends. It will be the best result for you.  You can 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 in the Ethics of The Fathers (1:8) 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 they have both agreed to the verdict.

Because when true justice has been done according to the dictates of halacha – its etymology being from the word  halicha, that is walking with G-d – then the results reflect what G-d wants for the parties at this particular time.

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What can be done so people can trust in a proper result?

Dov is a qualified Arbitrator, having obtained his Professional Certificate in Arbitration with High Distinction from the University of Adelaide.

Since 2013, Dov has been talking with arbitrators and rabbis about this topic. Specifically, with the Halachic input of Dayan Shabsi Tayar of Melbourne, Dov has formulated an Standard Arbitration Agreement and a set of Procedural Rules to ensure that any arbitral award will be congruent with both the Commercial Arbitration Act 2011 (Victoria) and Halacha, and will be enforceable by Australian courts.

We are now pleased to present a set of Procedural Rules which can be used for a one- or three-member arbitration tribunal. If it is one person, a non-rabbi or rabbi can arbitrate. If more than one person, the tribunal can be comprised of non-rabbis, rabbis, or a combination of both. 

Please see our FAQs which include a discussion about some of the features of these rules.

Before any arbitration can take place, the parties and the arbitrator must enter into an Arbitration Agreement. Due to the importance and seriousness of the arbitration, which will eventuate in a enforceable award, the agreement will be quite lengthy and cover many issues.

We have innovated as a standard procedure, the concept of a Preliminary Hearing,

which is a forum for the parties, their advisors and the arbitrator(s) to discuss in detail the procedure and halacha for how their arbitration will be conducted. In this discussion common scenarios will be raised so that parties can come to an agreement regarding the feasibility and hence ultimate success of the arbitration. If an agreement cannot be reached at this point it will be clear that a voluntary arbitration is not practical.

Our Standard Arbitration Agreement, as well as clearly setting out basic and important clauses, includes

a checklist of many common scenarios

for the parties to consider prior to the Preliminary Hearing.

 

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