This section deals with 'Mediation' and 'Arbitration' – two alternative ways of solving disputes.
Difference Between Mediation & Arbitration
Question:
What is the main difference between mediation and arbitration ?
Answer:
Basically, arbitration is a way of settling a dispute which is less formal than proceedings in court, whereby the arbitrator has judicial powers and makes a judgment or decision on it. The arbitrator’s ruling can be authorised by the appropriate court, in which case it will have the value of a normal court judgment, except for appeal.
In contrast, mediation facilitates the ending of a conflict by attempting to bring the sides together to reach an agreement. The mediator does not have a judicial role like the arbitrator . Once the sides have reached an understanding or agreement the mediator will inform the court which can then authorise the agreement and incorporate it into a judgment
Mediation & Confidentiality
Question:
Where parties caught up a legal battle at the family court are advised by the judge to consider mediation, could things said during the process be used as evidence against one side later on, if it fails and proceedings are resumed ?
Answer:
No! The Family Courts’ Act of 1984 specifically states that things that were said during the process of mediation cannot be used in civil proceedings.
Mediator Meets With Party’s Friend
Question:
Where spouses go for mediation, following the recommendation of the family court, and one discovers that the mediator met with the other spouse's best friend and brother, is this allowed or is something 'out of turn'?
Answer:
Yes, this is allowed ! Under the Family Courts’ Act of 1984 it is specifically stated that the mediator can meet with anyone connected with the dispute .
‘Private’ Meetings with Mediator
Question:
Where a married couple negotiating for a divorce settlement meet with a mediator, after a recommendation from the family court judge hearing their case, does the fact that the mediator, who is male, met the wife alone, without her lawyer, smack of bias ?
Answer:
No – such a meeting is allowed ! Under the Family Courts’ Act of 1984 it is specifically stated that the mediator can meet with the parties, separately or together, and that he can meet a party without his/her lawyer if that same side agrees.
Referral To Arbitration
Question:
Does the referral of a dispute to an arbitrator have to come from a court ?
Answer:
No, according to the Arbitration Law the initiative for arbitration can come from the parties themselves. They can agree amongst themselves that their conflict will be resolved by arbitration – and even agree on the identity of the arbitrator.
Alternatively, under the Courts’ Law of 1984 the court itself can take the initiative and refer the matter to arbitration if the sides agree on this.
Choice of Arbitrator
Question:
When sides agree that their dispute should be settled by an arbitrator who chooses one ?
Answer:
The nomination of an arbitrator is referred to in the Courts’ Law of 1984. The parties can, with court authorisation, appoint the arbitrator but if they cannot agree on someone then the court can appoint one from a list presented by them, or of its own free choice.
Value of Arbitration
Question:
What value does an arbitration ruling have ?
Answer:
A judgment incorporating the arbitrator’s ruling is of legal value only to the parties – or their substitutes . It has no legal value as regards third parties.
Arbitration – By Mutual Agreement
Question:
Can a party be forced into arbitration as a way of settling a dispute ?
Answer:
No! A court can only refer a civil matter to arbitration if both parties agree, according to the Courts’ Law of 1984. It has jurisdiction to refer just a part of the dispute, as well as the whole matter, to arbitration, and can define the conditions of arbitration, again, only if both parties agree.
Arbitration and Stay of Proceedings
Question :
Are legal proceedings stopped immediately once arbitration starts ?
Answer:
No, although the court will usually stop proceedings once arbitration starts. Under the Arbitration Act the court has discretion to decide whether or not to stop proceedings before it for which arbitration has started. If a party who is a side to the arbitration agreement asks for a stay of proceedings and is willing to stand by it then the court will stop proceedings. However, it is entitled not to do so if there is a special reason why the conflict should not be solved by arbitration.
Informality of Arbitration Proceedings
Question :
How strict are the regulations concerning arbitration proceedings ?
Answer:
Arbitration proceedings are less formal than those conducted in court. The arbitrator is not subject to substantial law, or rules of evidence or civil procedure, unless agreed otherwise in the arbitration agreement which will govern the arbitration process between the parties.
Arbitration Judgment & Third Parties
Question:
Who does an arbitration judgment bind ?
Answer:
An arbitration judgment is binding on the parties and their substitutes only, unless an intention is expressed otherwise in the arbitration agreement. An arbitration agreement cannot affect the rights of third parties and is not binding on them.
Arbitration Judgment : Reasoning
Question:
Is an arbitration judgment ‘faulty’ if it gives no reasons for its decision ?
Answer:
Until 2008, the answer was no, according to a Supreme Court ruling, which held that reasoning was optional, unless agreed otherwise. However, since changes to the law in 2008, which made appeal against an arbitration ruling possible if the parties agree so in advance, reasons must now be given, unless agreed otherwise.
Arbitration – Now Appealable Following Change in Law
Question:
Can an arbitration ruling be appealed ?
Answer:
Only if the parties agree so in advance in their arbitration agreement. Following an amendment at the end of 2008 to the Arbitration Law, parties can choose from one of two appeal options, in advance. The first is for an appeal before another arbitrator, and the second is an appeal, if permission is granted, before a single judge, if there is a basic fault in the application of the law to the extent that injustice is caused.
Deadlines For Appeal
Question:
What is the deadline for appealing an arbitration ruling ?
Answer:
Thirty days after receiving it.
Correcting Arbitrator’s Judgment
Question:
What should be done if the arbitration judgment settling a property dispute makes no mention of interest one side must pay if a certain amount of money is not transferred on time, and does not mention anything about which side should pay for the legal costs so far ?
Answer:
Where the arbitration judgment does not mention anything about interest or the parties’ costs or lawyers’ fees then a side is able to ask the arbitrator to correct it. A time-limit of 30 days from the date the arbitration judgment is given, or received by the party, exists for applying for a correction regarding these particular issues. If the mistakes are more technical e.g. spelling or arithmetical errors , error about date, description of person or property etc, or where the shortcoming is not central to the conflict no such time-limit for asking the arbitrator to correct it.
Court Corrects Arbitration Judgment
Question:
Where a family court has been asked to authorise an arbitration judgment relating to a dispute and it is found to contain a few mistakes, including an error in a party's I.D.card number, how can these errors be corrected ?
Answer:
Where the mistake in the arbitrator’s judgment is technical, or relates to a matter which is not at the heart of the conflict, the court having jurisdiction can correct it when it deals with a plea to authorise or cancel the judgment.
Objecting To Authorisation of Arbitration Judgment
Question:
How can objection be made to a plea to authorise an arbitration judgment ?
Answer:
To object to a plea to authorise an arbitration judgment in court, the person objecting should apply to cancel it within 15 days of receiving notice of the plea to authorise it, and not later than 45 days from when the judgment was given.
Grounds For Cancellation of Arbitration Judgment
Question:
Can a party who feels that an arbitration judgment was very unfair because the arbitrator always dominated the conversation and would never let him/her talk freely, get it cancelled ?
Answer:
Yes, not allowing a side to make oral claims or bring evidence is one of the permitted grounds for cancellation of an arbitration judgment recognised in the Arbitration Act. The court having jurisdiction over the matter can cancel, add to or alter an arbitration judgment, or even refer it back to the arbitrator, following an application from one of the sides providing one of the grounds for cancellation listed applies.
Lowering Arbitrator’s Fee
Question:
Can two parties who feel that the arbitration fee set by the arbitrator is exhorbitant, do anything to lower the fee ?
Answer:
Yes! The court having jurisdiction over arbitration can reduce the fee the arbitrator has set for himself following an application to this effect by a party, providing it also regards the fee as being exaggerated . The application can only be made after the arbitration judgment has been given – and then within 45 days.
Arbitration Agreement Contradicts Substantial Law
Question:
Can an arbitration agreement be cancelled because it has made a mistake about the actual law on a particular matter ?
Answer:
No! An arbitration agreement cannot be cancelled because it contradicts substantial law on a particular issue. Only ten grounds for the cancellation of an arbitration judgment are recognised in the Arbitration Law and they concentrate on faults in the actual arbitration process. Furthermore, the act specifically states that the arbitrator is not bound by substantial law.
'Unpaid’ Arbitrator Halts Arbitration
Question :
Is an arbitrator entitled to stop the arbitration process because one party cannot afford to carry on paying him for the moment , but promised to pay at a later date ?
Answer:
Yes!The arbitrator is entitled to hold up arbitration proceedings , and even the actual giving of the arbitration judgment or its handing over if his fee, or part of it, is not paid on time. If a party refrains from paying because he/she feels the fee is exhorbitant, the court can, at his/her request, order the arbitrator to continue, providing that the fee in dispute is deposited with the court or the person objecting provide some guarantee.
Arbitrator Did Incomplete Job
Question:
What can parties to an arbitration ruling, that is about to be taken to court for authorization, do when they discover it makes no mention of some important points at the heart of their dispute ? ?
Answer:
If an arbitrator has not ruled on a matter he was supposed to this is one of the ten permitted grounds for cancellation of an arbitration judgment recognised in the Arbitration Act. The court having jurisdiction over the matter can cancel, add to or alter an arbitration judgment, or even refer it back to the arbitrator, following an application from one of the sides providing one of the grounds for cancellation applies.
Arbitrator – One or Several
Question:
Is it possible to have more than one arbitrator ?
Answer:
Yes it is possible. In the appendix to the Arbitration Law of 1968 it states that arbitration takes place before a single arbitrator – unless it is stated in the arbitration agreement between the parties that there should be more than one.
Panel Of Arbitrators : Decision-making
Question:
How is an arbitration ruling reached when there is a panel of arbitrators rather than a single one
Answer:
In the appendix to the Arbitration Law of 1968 it states that where arbitration takes place before a panel the ruling will be based on a majority decision. Where there is no majority – and this is possible because a panel does not have to consist of an even number of arbitrators – the chairman will have the casting vote.
Cancelling Late Arbitration Decision
Question:
Can an arbitration decision be cancelled because it was made too late ?
Answer:
Yes ! Haifa District Court cancelled an arbitration decision because it was given late. The parties’ arbitration agreement stated that an arbitration ruling should be made within seven days of them signing – but it was actually given several months later.
New Topic – New Arbitrator
Question:
Where an arbitration ruling was made concerned a dispute between two family members and the same arbitrator is also due to rule on another matter in other arbitration proceedings concerning the same basic dispute, is it preferable to appoint another arbitrator ?
Answer:
Where there is a ‘ substantial overlap’ between the factual findings in the first arbitration ruling and the claims to be decided upon in the second arbitration ruling, and there is a ‘ substantial possibility’ of the arbitrator having a clear opinion on the matter, then he should step down and another arbitrator should be appointed to make the second arbitration ruling.
The idea is that justice should not only be done, but should be seen to be done,to maintain public confidence . Where one party to a future arbitration ruling feels he is inferior to the other, in the eyes of the arbitrator, and this feeling has a foundation, then the key principle of equality is infringed to the extend that the judicial process is not valid .
tel: 03-5234133, 077-3500000
fax: 03-5232251