A Bais Din (also known as a Beth Din, Beit Din, or Beis Din), is a Rabbinical Court that resolves all types of disputes between people of the Jewish faith, from landlord/tenant disputes, to divorce and custody matters.
While a Bais Din system of adjudication is incorporated into the Israeli legal system, in the United States and elsewhere, parties must submit to an Alternative Dispute Resolution (ADR) process known as arbitration when submitting disputes to a Bais Din.
As Rabbi Chaim Jachter explains in “Beit Din Basics” the two concepts of a Jewish Bais Din and a civilly approved arbitration proceeding are in harmony with one another:
Our financial disputes with our fellow Jews should be resolved “within the family” and according to the rules of our tradition. We should emphasize that this is entirely in harmony with civil law, as civil courts are most pleased with alternative dispute resolution. Civil courts are overburdened and the government is delighted to be relieved of the burden of resolving our disputes.https://images.shulcloud.com/202/uploads/Divrei_Torah/Beit-Din-101.pdf
As with all arbitrations, prior to having a case heard by the Bais Din, parties must enter into a legally binding arbitration agreement, and a Bais Din is required to conduct proceedings consistent with the requirements of any other type of civil arbitration proceeding. Provided that is done, and there are no indications of fraud or other wrongdoing during the arbitration proceedings, an arbitration will be enforced by a civil court.
The Family Part permits arbitrations related to resolve a divorce and all issues attendant thereto. However, there are specific procedures and mandates related to such arbitrations in New Jersey to keep in mind.
Pursuant to R. 5:1-4(a)(5) – Arbitration Track:
At any point in a proceeding, the parties may agree to execute a Consent Order or Agreement to arbitrate or resolve the issues pending before the court pursuant to the Uniform Arbitration Act, N.J.S.A. 2A:23B-1, et seq., the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1, et seq., or any other agreed upon framework for arbitration of disputes between and among parties to any proceeding arising from a family or family-type relationship except as provided in R. 5:1-5(a)(1). If the parties elect to arbitrate, the litigation shall be assigned to the Arbitration Track, provided the parties have executed and filed with the court the Arbitration Questionnaire, which is set forth in Appendix XXIX-A, and the Arbitrator/Umpire Disclosure Form, which is set forth in Appendix XXIX-D. Thereafter, the arbitration shall proceed pursuant to R. 5:1-5. Issues not resolved in the arbitration shall be addressed in a separate mediation process or by the court after the disposition of the arbitration.
The procedure for agreeing to arbitration in the Family Part is provided in Rule 5:1-5(b), which sets forth “Prerequisites” to any Agreement to Arbitrate:
(1) Arbitration Questionnaire. The Arbitration Questionnaire, which is set forth in Appendix XXIX-A, shall be signed by each party, attached to the Agreement or Consent Order, and filed with the court.
(2) Arbitrator Disclosure Form. The Arbitrator/Umpire Disclosure form, which is set forth in Appendix XXIX-D, shall be signed by the arbitrator/umpire, attached to the Agreement or Consent Order, and filed with the court. The parties must file the Arbitration Questionnaire, the Arbitrator Disclosure Form, and the Agreement or Consent Order before the case is placed on the arbitration track.
(3) Agreement or Consent Order.
(A) The Agreement or Consent Order shall be signed by the parties and shall state:
(i) the parties understand their entitlement to a judicial adjudication of their dispute and are willing to waive that right;
(ii) the parties are aware of the limited circumstances under which a challenge to the award may be advanced and agree to those limitations;
(iii) the parties have had sufficient time to consider the implications of their decision to arbitrate; and
(iv) the parties have entered into the Agreement or Consent Order freely and voluntarily, after due consideration of the consequences of doing so.
While the above-mentioned Arbitration Questionnaire has been adjudged fulfilled by the same criteria set forth in the body of any such Agreement to Arbitrate, pursuant to the Comment to R. 5:1-5 “….Appendix XXIX-D [form arbitrator/umpire disclosure] is mandatory by this rule and R. 5:1-4.” Comment 3 to R. 5:1-5, Pressler & Verino, Current New Jersey Court Rules, p. 1730 (2022).
While it is common practice for a particular Bais Din and attorneys regularly appearing there to execute “form” Agreements to Arbitrate, many times, critical components of those agreements may be deficient or even altogether missing. Therefore, when entering into Agreements to Arbitrate to engage in Bais Din proceedings, lawyers, arbitrators, and litigants should be mindful to ensure that all of the above requirements are met. Otherwise, they risk the entire arbitration being tossed out before it can even be enforced.
My next post will discuss arbitrations in Bais Din related specifically to custody proceedings, which have specific requirements that must be met pursuant to Rule 5:1-5(b) and case law.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or email@example.com.