From conflict to consensus:  Mandatory ADR in Israeli family litigation

This approach not only allows parties to reflect on their disputes without the pressure and cost of a full court proceeding – it also compels the parties to evaluate their positions with the help of professional mediators and attempt an amicable resolution. 

The mechanism

When a dispute arises between spouses, or regarding a minor child, the party who seeks to bring the dispute before the court must first file a motion for dispute settlement (MDS) with the relevant court. This motion is filed using a form which contains the parties’ names and contact details only, with neither facts nor legal arguments. Following the filing of this form, all proceedings between the parties, except for requests for urgent remedies, are stayed for a period of 60 days. During the first 45 days of this period, the parties will be summoned to the court’s support unit, staffed by social workers, for up to four meetings, which are held without the parties’ attorneys. In these meetings, the social worker familiarises the parties with the legal proceeding and its potential consequences, and suggests alternative methods for resolving the situation, such as additional mediation, couples’ counselling, etc. 

These proceedings are entirely confidential, and whatever is disclosed in them cannot be used in court. In addition, the MDS can be filed either with the rabbinical court or with the civil family court, without assigning jurisdiction over the dispute to either court. This means that after the 60 days’ stay of proceeding has elapsed, either party can file statements of claim in whichever court they prefer. The first to file a claim chooses the jurisdiction.

Analysis

The mandatory MDS gives couples the time and flexibility to pause a (typically) bitter legal fight and discuss reaching agreements that truly address their needs and wishes, before they plunge into a legal proceeding, which in family court can become complex and emotionally charged, as well as expensive. Initially, there were concerns the MDS might deter couples from seeking litigation, and harm their right to be heard in court. However, a 2020 study revealed about half of all MDS files turn into a full legal proceeding, showing that the right to approach the court has not been significantly harmed, and demonstrating the success of this mechanism. 

---

Gilli Cohen Arazi is an associate attorney in the litigation department at Soroker Agmon Nordman Riba. Gilli brings her commercial litigation expertise to complex family disputes, and her understanding of delicate interpersonal relationships to commercial disputes, together with a sensitivity for client needs. 

Safi Riba is a partner, and head of the commercial/civil litigation as well as family litigation team at Soroker Agmon Nordman Riba. His unique understanding of the economic aspects of family law and his attention to detail help him achieve the best result for every client.