Ideally, parties to a dispute would agree to litigate at an established and reputable beit din. The beit din would then empanel a group of expert dayanim (arbitrators) to hear the case. Practically, however, the din torah process can get stalled when parties fail to agree on a beit din—when each party rejects the other’s proposed forum. As our earlier post explained, a beit din generally does not have jurisdiction to decide a case until it is accepted by both parties through an arbitration agreement. 1
- Zabla Panels
If the parties cannot agree on an established beit din, Jewish law provides for the formation of an ad hoc “zabla” panel. 2 Zabla (זבל”א) is an acronym for zeh borrer lo echad (lit. each party selects one arbitrator), which captures how the panel is formed: Each party selects one arbitrator (sometimes referred to as a borrer). The two arbitrators then choose a third member to complete the panel (sometimes referred to as the shalish).
If the case proceeds before a zabla panel, each chosen borrer has a heightened responsibility to consider the perspective of the party that chose him. 3 But ultimately the dayanim on a zabla panel should function as impartial arbitrators and decide the case exclusively on its merits.4
- Zabla Problems
In practice, zabla panels can be problematic because litigants and borrerim (pl. of borrer) have approached zabla cases with the view that the borrer should function as a full advocate for the party that chose him. This creates a host of halakhic problems and is the reason why poskim have discouraged zablas.5 For example, Jewish law prohibits ex parte communication between arbitrators and litigants. 6 Yet borrerim have sometimes engaged in private communications with the litigant who selected them. 7 Similarly, Jewish law prohibits arbitrators from taking money from individual litigants. 8 Yet borrerim have sometimes even taken side payments in the form of consultation fees from the litigant who hired them. 9
In addition to these halakhic problems, zabla proceedings can be very costly. Borrerim who sit on zabla panels often charge hourly rates higher than rates charged for proceedings overseen by established battei din. Zabla panels have also been criticized because they are used as stalling mechanisms. A litigant can stall the din torah process by picking a borrer of ill-repute, knowing that a competent dayan would refuse to sit with him. 10
Because of these problems, a din torah arranged by an established, reputable beit din is always preferable to a zabla proceeding. The best way to head off a forum dispute—and zabla proceeding—is to include in your contracts a pre-dispute arbitration provision that specifies an established and reputable beit din.
- Ensuring Procedural Fairness in a Zabla
If you find yourself in a forum dispute such that you and your adversary cannot agree on a beit din, there are some steps that you can take to enhance the fairness of a zabla proceeding.
One option is to arrange for the zabla to take place under the auspices and rules of an established beit din. The Beth Din of America has successfully conducted such proceedings under its rules and procedures, often with panels staffed by a dayan appointed by the Beth Din of America, a dayan from the defendant’s chosen beit din, and a third dayan mutually agreed upon by the two battei din. When a defendant responds to a hazmana sent by the Beth Din of America by opting to appear before a different beit din, the Beth Din of America will sometimes contact that beit din to establish a joint panel overseen by one or both of the batei din, and present that option to the parties.
If you can’t arrange for a zabla under the auspices of an established beit din, it is a good idea to insist that each side choose a borrer who regularly serves as a dayan at a reputable beit din. Furthermore, at the outset of any zabla proceeding, it is important to have a clear conversation among the parties and dayanim regarding procedural issues such as ex parte communication and payment arrangements for the panel. Expectations should be clearly set forth in the shtar berrurin that will govern the zabla proceeding, specifying that each borrer will arbitrate impartially, that ex parte communications will be prohibited, and the like. As a way of ensuring fairness in zabla proceedings and avoiding various abuses, the Beth Din of American will not allow a defendant to respond to a hazmana by selecting a to’en (rabbinic advocate) as their borrer for a zabla. 11 This policy is based on a presumption that a borrer who regularly functions as a to’en will serve as an advocate for the party that hired him, not as an impartial dayan.
Zabla proceedings can be halakhically problematic, costly, and procedurally inefficient. A din torah arranged by an established beit din is almost always preferable to a zabla. It’s therefore best to preempt a forum dispute by including a pre-dispute arbitration clause in your contracts, designating an established beit din as the arbitration forum for your dispute.
If you didn’t do that and you find yourself locked in a forum dispute, it’s important to take steps to ensure the fairness and integrity of a zabla. These steps include attempting to arrange for the zabla to take place under the auspices of an established beit din and its rules; ensuring that only dayanim who regularly function at reputable batei din will serve as borrerim on your zabla; and laying down clear rules and procedures that will govern the zabla proceedings.
Photo credit: Honoré Victorin Daumier, The Three Judges. 1858–1860, Watercolor and brush and black gouache, with charcoal, heightened with gray gouache, over touches of graphite, on ivory laid paper, The Helen Regenstein Collection of European Drawings, The Art Institute of Chicago, Chicago.
- See Rabbi Yona Reiss, “Jewish Law, Civil Procedure: A Comparative Study” Journal of the Beth Din of America 1 (2012), 18 – 19.
- Shulchan Arukh Choshen Mishpat 13:1.
- Rama Choshen Mishpat 13:1, Sema Choshen Mishpat 13:4.
- Rosh Sanhedrin 3:2, Tur Choshen Mishpat 13:8, Arukh Hashulchan Choshen Mishpat 13:3.
- Rosh and Tur, above n. 4, Shut Panim Me’irot 2:159, Pitchei Teshuvah Choshen Mishpat 13:3, Rabbi Mordechai Willig, Ha’arot be-Reish Perek Zeh Borrer, Beit Yitzchak 36 (2004), 17-21. See also Rabbi Yona Reiss, “The Torah-u-Madda Mandate for Beth Din in Today’s World” Journal of the Beth Din of America 2 (2014), 24 – 25.
- Shulchan Arukh Choshen Mishpat 17:5.
- Shut Panim Me’irot and Pitchei Teshuvah, above n. 5. But see Arukh Hashulchan Choshen Mishpat 13:4 who justifies this practice on the basis of an implicit waiver. Rabbi Mordechai Willig, above n. 5, raises several concerns regarding the Arukh Hashulchan’s justification. In addition, the Aruch Hashulchan’s ruling should be qualified for those many cases where parties do not wish to allow such communications, and wish instead to follow the strict integrity of the halacha.
- Shulchan Arukh Choshen Mishpat 9. The Shulchan Arukh (9:5) provides that, if the dayanim are to be compensated by the parties directly, the parties must bear the costs evenly, and Shakh (9:6) requires that each party must make the payment in the presence of his adversary.
- Shut Panim Me’irot, Pitchei Teshuvah, and Rabbi Mordechai Willig, above n. 5.
- See for example Rama Choshen Mishpat 13:1.
- Sections 2(e) and 2(f) of the Beth Din of America’s Rules and Procedures provide that the Av Beth Din is entrusted with the authority to determine who is and is not authorized by Jewish law to serve as a selected arbitrator in a case. Accordingly, the Av Beth Din’s opinion is dispositive with respect to these determinations, even if a particular litigant does not share the same opinions of the application of Jewish law.