Q & A
Q #1. If I receive an invitation to attend a Beis Din, must I attend? If the answer is I do, can you please explain the basis for this obligation?
A. Principally, when a person has a Shaylo (a halachic question), he is expected to ask a Rov that is well versed in that field to determine the acceptability and appropriateness of the item or activity in question. The one posing the Shaylo is allowed to select the Rov he believes is best suited to respond canonically. Indeed, the Mishna says in Avos (1:16), "Aseh lecho Rav v'histalek min hasofek", make for yourself (or as the Rebbe puts it: "force" yourself to accept (cf. Gitin 88b. Beis Yosef Y"D 248)) a Rov and avoid doubt. [Watch the Rebbe beseech the Chassidim to adopt a personal Rov immediately and to not postpone doing so until tomorrow.]
When a dispute arises, the need for such an authority is even greater: Conflict inherently involves a difference of opinions between at least two parties who have failed to reach an agreement because of their lack of Torah knowledge or objectivity (or both), making it necessary for an impartial arbitrator, knowledgeable and experienced in Choshen Mishpot (i.e., one who possesses the qualification of "Yodin Yodin"), to formulate the appropriate course of action. Leaving a dispute unattended is not an option that the Torah supports, especially if one of the parties has requested a Din Torah. And because one lacks objectivity, this obligation cannot be discharged (nor postponed) without the assistance of an impartial arbitrator, even if he is convinced beyond a doubt that the other party is without claim whatsoever.
However, since the appointment of such authority cannot be claimed by either party, disputes are commonly arbitrated by a Beis Din (a panel of 3 dayonim) in the form of a “Zablo” arrangement where each party chooses one arbitrator, and the two arbitrators choose a third.
By signing an arbitration agreement, the parties empower the arbitrator(s) to issue a Psak Din that will be binding both halachicly and legally. This means that according to halacha, they must obey the Psak Din even if they don't understand its basis nor feel it is fair.
For more information regarding this process, please see here.
If a person requests of his fellow that they take their dispute to a Rov or Beis Din for adjudication, his request binds and obligates his fellow halachicly to surrender and commit to this process (see Sema 79:31).
Inviting the other person is easy. It can be done directly or through a Rov or Beis Din. For details regarding the process of initiating a Din Torah, please see here.
To read a letter of the Lubavitcher Rebbe regarding the importance of attending a Din Torah when called, and the attitude his friends should have if he refuses even temporarily, please see here.
Q #2. Must one of us initiate a Din Torah if we can't work things out ourselves?
A. Halacha mandates that we avoid controversy and it's not always easy to reach common ground without the help of an independent party. Postponing a Din Torah is usually unwise as the longer a dispute drags on, the harder it becomes to repair the relationship.
A Din Torah is generally heard confidentially, and if done right it allows the parties to put their differences behind them and leave in a better mood. Also, when parties to a dispute agree to attend a Din Torah, everyone involved receives Hashem's Brochos.
Although one could just give in and avoid a Din Torah, one shouldn't choose this path if by doing so he will walk away feeling upset or cheated.
Q #3. What are my options if the other person refuses a Din Torah?
A. You can seek permission to take the matter to court. Alternatively, you can hand your claim over to Hashem. Before doing so, you should first inform the other person of your intentions (cf. Ramo Choshen Mishpot 422:1).
To receive permission to take the matter to court, the other party must first be formally offered a Din Torah. See below question #6. "How do I initiate a Din Torah?"
Q #4. Must a Hazmono be sent to utilise the services of the Beis Din?
A. No. Parties to a dispute can - and should - amicably agree to take the matter to a Rov or Beis Din, and their query will be handled promptly and efficiently, and often at no cost to them. A person that refuses to go to Beis Din at the request of his opponent, and only goes when he is summoned by a Beis Din, is a Mesarev l'Din (Sema 79:31).
Q #5. I just received a Hazmono via email. Can you please advise me of the costs?
A. Arbitration services are generally provided at no cost to the parties. For more information, see here.
Q #6. How do I initiate a Din Torah?
A. You can initiate a Din Torah by inviting your opponent to a Din Torah or, alternatively, you can ask a Rov or Beis Din to send the hazmono on your behalf. For more information, see here.
Either way, if the Beis Din sees that your opponent was formally invited and ignored you, the Beis Din can issue a Heter Arko'os document giving you halachic permission to take the matter to secular court.
Q #7. I've recently received a Hazmono and I'm scratching my head to understand why the fellow has directed his strong emotion against me especially having regard to the kindness which I have shown towards him over an extended period. In order to avoid causing a controversy, should I ignore him?
A. If you're in receipt of a Hazmono (an invitation to attend a Din Torah), halacha mandates that you attend and defend yourself. The reason for this requirement is that only a third party can truthfully determine the claim that you have wronged your fellow and whether you are required to make amends. [Though cognitive biases can be beneficial in certain fields such as business, finance, and management, they unfortunately hinder objective analysis of interpersonal dissonance.]
Taking your case to Beis Din shouldn't be a source of anxiety for you, especially if you've only shown kindness towards this individual. If you truly acted within your rights, the Beis Din will rule in your favour. Keep in mind that even if until now you did nothing wrong, refusing to attend a Din Torah is in itself an Aveiro. And since attendance is essentially free, why not take advantage of the blessings you will receive from God for committing to this fundamental practice?!
Q #8. I've received a Hazmono from a Beis Din in , but no one seems to have heard of it and they don't appear to even have a website. Can I insist that the matter be heard by a more established and well-known Beis Din?
A. Unless both the claimant and respondent belong to the same constituency (i.e. they live in the same area where a Beis Din Kavuah (a democratically elected Beis Din - Responsa Igros Moshe Ch"M 2:3) has jurisdiction), the respondent can reply that he prefers a different Beis Din. If his suggested alternative is within reason, the Beis Din issuing the Hazmono will instruct the claimant to either accept the alternative or opt for a Zablo (which is an arrangement where each party chooses one arbitrator, and the two arbitrators choose a third). A well-known self-appointed Beis Din is no more authoritative than one that is less well-known. Most Batei Din today (if not all) are self-appointed and cannot claim exclusive jurisdiction.
Q #9. (follow-up) Would you recommend any particular Beis Din?
A. The Torah instructs "Tzedek Tzedek Tirdof" (Dvorim 16:20), and Rashi quotes the Sifrei and Gemora to interpret this to mean that one should "Seek out a good court." A good court ("Beis Din") is a panel of at least three knowledgeable and God-fearing arbitrators that respects halacha and its protocols.
While dayonim are (sometimes) allowed to receive (equal) compensation from the parties for adjudicating, if the service they are offering is non-gratuitous, they are halachicly unable to issue a Ksav Siruv (a bill of refusal) or Heter Arko'os (permission to take the matter to court) in the event the respondent ignores their call. Some Batei Din assert a person's halachic obligation to take part in a Din Torah while simultaneously expect him to pay for their service. A Beis Din that does this is guilty of extortion (see Shulchan Aruch Harav Yoreh De'ah 1:11 and Kuntres Achron 1:7 regarding the Mitzvah of adjudicating and its ramifications).
Another incorrect practice is the expectation and requirement of some Batei Din that the parties sign an arbitration agreement before the commencement of the hearing which will allow the arbitrators to issue a ruling as a Pshoro (a "lukewarm" solution or "compromise"). While a Beis Din should offer the parties the ability to compromise (to avoid an Oath while holding a Sefer Torah, or to reach a more peaceful solution), it cannot deprive someone of his halachic right to an uncompromised, purely halachic Din Torah. (One often hears that litigants are no longer given the opportunity to take an oath, and instead, if the arbitrators are unable to ascertain who is telling the truth, they will issue a Pshoro (e.g., they will order the respondent to pay a third of the claim). As well as being irrational and inherently unfair, this baseless approach undermines the validity of Heter Iskos, which requires the borrower to be able to take an oath in Beis Din to verify his profit statement.)
Such behaviours, especially when combined, are mercenary, unhalachic and fly in the face of justice. Never rely on a Beis Din's successful PR and public image for these can be manipulated. Inquire if the Beis Din offers a strictly halachic, uncompromised Din Torah and if its enterprise is non-commercial.
Q #10. (follow-up) If I can't find a Beis Din which operates gratuitously, should I pay for the service?
A. Every human being has a moral and halachic obligation to facilitate justice and adjudication for those seeking it.
There is also a specific Mitzvah and obligation for Jews to adjudicate according to halacha, as it says "B'tzedek tishpot" ("Judge righteously," Vayikro 19:15). A Beis Din (a group of any three individuals that can adjudicate according to halacha) is therefore obligated (even nowadays, at least M'derabonon - see Shach Choshen Mishpot 25:29:8) to judge fairly - and to ensure that their judgement is carried out - at no cost to the parties (See Shulchan Aruch Harav Yoreh De'ah Kuntres Achron 1:7).
If, however, the judges require compensation for lost income, individuals seeking a Din Torah may choose to pay them for their time. Indeed, the Possuk says "Emes Knei" (“acquire truth”, Mishlei 23:23), and the sages interpret this to mean that if the only way to learn Torah is through payment, one should do so (see Rambam Laws of Talmud Torah 1:7).
Q #11 (follow-up) You mentioned that if the parties cannot agree on a particular Beis Din, then the Beis Din issuing the Hazmono will instruct each party to choose one arbitrator, and the two arbitrators will then choose a third. What if the arbitrators can't agree on a third? Or what if the arbitrators chosen by the two parties are related and cannot sit on the same Beis Din?
A. If they can't agree on the third arbitrator and both parties reside in the same locale, the original Beis Din maintains the authority to adjudicate (cf. Ramo Choshen Mishpot 13:1 and Shu"t Ramo 104), in line with the principle of "Nizkokin Latoiveya Tchilo" (Bobo Kama 46b, "We attend to the claimant first." cf. Choshen Mishpot 24) and "Eved Loiveh L'Ish Malveh" (Misheli 22,7, "the borrower is a slave to the lender" cf. Shu"t Ramo 104). If they reside in different locales, the adjudication takes place in the respondent's locale (Ramo Choshen Mishpot 14:1). Accordingly, for convenience purposes, the second Beis Din might be asked to adjudicate.
If the selected arbitrators are related, the respondent has the upper hand, and the claimant would have to select a substitute (Shu"t Ramo 104).
Q #12. I've received a summons to appear in court. The claimant is a Jew. Am I allowed to go to court and defend myself or do I need a Heter Arko'os?
A. Since you are not the one initiating secular court proceedings, you do not require explicit halachic permission to defend yourself in court. But if you chose to send your opponent a hazmono, he might be persuaded to change course. Another benefit in sending him a Hazmono is that if he ignores you and the Beis Din accords you a Heter Arko'os, you would be entitled (halachicly) to the costs component awarded by the court should you win.