Those who are going through a divorce are faced with choices as to the venue their dispute will be heard, in addition to the traditional forum of litigation before the Supreme Court of New York.
Mediation and arbitration are alternative forums where divorce settlements may be resolved.
Mediation: This process, which today has gained popularity due to the fact that costs are curtailed. The parties choose a neutral person, preferably an experienced attorney, who is a trained mediator, to work with both of the parties. Sessions are conducted in which the mediator attempts to arrive at a mutual agreement with the participation of both parties. All issues are addressed from custody, parenting time and child support through the division of assets. The parties agree as to payment for the costs of the Mediator fees. Mediators generally require the parties to waive their right to call the mediator as a witness in any potential future litigation. Accordingly, the substance of the conversations and sessions cannot arise in any future litigation. It is only if the parties arrive at an agreement, will they execute a Stipulation based on the sessions. The drawback to the mediation is that at any time a person may withdraw from it and the time spent will be lost.
Mediation is a process that I have recently become involved with. The parties Rabbi or a psychologist are brought in to assist in the sessions to attempt to resolve the outstanding issues. The parties if at the completion of the process leave with a draft of the understanding which they can review with whom they choose, which then can be submitted to the Court.
Arbitration: This process is one in which the parties agree that to submit their disputes to an arbitrator or a panel of arbitrators. The parties’ arbitration agreement empowers the panel to decide the issues presented which can later be submitted to a Court to confirm. New York State law Section 75 of the CPLR deals specifically with the laws and rules of arbitration.
Arbitration, as relates to divorce, can result in a final decision on all economic issues. Child support can be handled by arbitrators, should they follow the dictates of New York State law namely the Child Support Standards Act. The one area where arbitrators do not have final decision making authority is dealing with child custody issues. The Courts in New York have stated that custody and visitation disputes are not subject to arbitration. As the Court’s role as parens patriae (ultimate parent) cannot be usurped (Berg v. Berg a New York State case). A Beth Din is considered an arbitration panel under New York State law and a Shtar Buririm, an agreement to arbitrate, is deemed valid.
Once parties execute and empower a panel (including a Beth Din), there is a high burden one must reach in an effort to contest their decision. Accordingly, one is advised to insure that they have competent representation during the arbitration process in any forum including a Beth Din. Proper procedure and an opportunity to be heard and represented must be adhered to for the arbitrator or arbitration panel’s decision to be upheld. Ultimately after a decision or P’sak is rendered, one would move before a Court of competent jurisdiction to confirm the decision within one year of it being rendered. The moving side may remain silent or move to set it aside based on grounds that are specifically stated in the law. One should be aware that after adjudicating custody and visitation before the arbitration panel or Beth Din, should one party seek to set that issue aside, the Court will entertain that application. Today’s economy has forced parties to seek alternative solutions to resolve their differences, mediation and arbitration have been more popular as the cost of litigation has become prohibitive to many.
In the case of Beth Din, the process generally begins by one party summoning the other, which in return must be responded to. If the two parties cannot agree on a Beth Din, then each party selects a Judge (Borer) and the two selected will choose the third. This process is called Zabla. The parties execute a binding arbitration agreement which empowers the panel. In today’s society, Zabla is the most popular method in the Beth Din proceedings, within the Orthodox Community.
Process: As an aside, in a Beth Din proceeding, the Beth Din will issue three (3) invites (Hazmanas) from the person petitioning the Beth Din. If they are not responded to by the side being summoned, then the Beth Din can issue a Seruv (indicating that the person has not respond to calling Beth Din and should be sanctioned by the community according to Halacha, (for example, should not be welcome into synagogues or given any honor etc).
By: Martin E. Friedlander, Esq.
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