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A Proposal for P'sharah: A
Jewish Mediation/Arbitration
Ira Yitzchak Kasdan

Halacha generally prohibits a Jew from initiating legal action against a fellow Jew in a court other than a Beit Din.1 Despite this Torah-based prohibition,2 religious Jews, like others in today's litigious society, unfortunately turn to the courts of this land to resolve disputes in which they become embroiled.

The conceivable reasons behind the derogation of this halacha are manifold.

First, it appears that the restriction against proceeding in Arkaot Shel Nochrim, the reference to non-Jewish courts, 3 is not well-known. Relatively few responsa over the past few decades 4 have delved exhaustively into issues surrounding secular litigation. Only recently have articles on this topic begun to appear in popular halachic journals. 5

Second, many Orthodox Jews who even have a general knowledge of the problem, miscomprehend the parameters of the issue of Arkaot. Two misconceptions abound: (1) that our judicial system cannot be considered Arkaot and, therefore, is not covered by the prohibition, and (2) that the law of the land, "dina d'malchuta dina," automatically sanctions secular court lawsuits.

The initial misconception stems from the mistaken notion that Arkaot Shel Nochrim encompasses only idolatrous or corrupt courts. In fact, the Halacha prohibits a Jew from litigating in any non-Jewish court. 6 By not proceeding in Beit Din, the individual raises the potential Chilul Hashem inference that Jewish law is incapable of resolving the case at hand. 7 Additionally, should a civil court order monetary relief in a case where the Halacha would not, a plaintiff could come to transgress the prohibition of g'zelah. 8

Moreover, dina d'malchuta dina in no way condones the bypassing of Beit Din. The law of the land is more narrowly applied in Halacha than, perhaps, is commonly recognized. 9 In any event, it is a substantive rule of law and does not specifically speak to the question of choice of a Jewish or non-Jewish forum to resolve a dispute.

A third reason why many may disregard the primacy of Beit Din jurisdiction in favor of secular courts, concerns the inability of Beit Din to enforce its own decrees. Of course, this problem may be solved by the advance agreement of parties to be bound by the Beit Din's holding and permit state or federal court enforcement of the judgment. Nonetheless, instances arise where a Beit Din's decision is not upheld due to procedural and/or substantive challenges to the Beit Din proceeding. 10

Another possible explanation for the lack of enthusiasm for Beit Din is the concern putative litigants have regarding what substantive law applies. Jewish law certainly does not always coincide with the statutory or common law that, in people's minds, formed the basis for the transaction or circumstance now in dispute. Parties refuse to subject themselves to the jurisdiction of a Beit Din which might, it is perceived, unfairly elevate halachic dictates and responsibilities over commonly accepted, albeit secular, laws and customs.

Regardless of whether the various rationales to avoid Beit Din are valid or are misplaced, the fact remains that the halachic restriction against Arkaot proceedings cannot be supplanted. Without obtaining the permission of a Beit Din, the plaintiffs attorney halachically is required to abstain from aiding in the instigation or continuance of a lawsuit outside the confines of Beit Din.11

For the client who, for whatever reasons, refuses to turn to a Beit Din and for the lawyer who does not wish to lose litigation business, two alternatives exist which are halachically viable and practicable: mediation and arbitration. These two methods of alternative dispute resolution are well-founded in Halacha in the form of "p'sharah" or "bitzua" and can be tailor-made to serve the needs of Jewish litigants.

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