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Obtaining discovery in a Beth Din is quite a lot different than in court or in the more national, secular, arbitration tribunals. The Federal and State judiciary forums have developed extensive and comprehensive rules of exchanging documents in discovery and obtaining pretrial depositions in order to avoid trial by ambush before jury or the bench. This discovery process is subject to abuse and adds many months, if not years, onto a process before there can be a final resolution of the dispute.
Arbitration is often chosen to avoid the rigors of discovery in an effort to obtain some rough justice in a relatively short period of time. To that means, many arbitration tribunals like AAA, JAMS and FINRA discourage or outright prohibit pretrial depositions, yet at the same time they are open to a more broad scope exchange of documents. This is not to say that one cannot get pretrial depositions at the AAA, but it is more uncommon.
This past year has shown that many famous men had covered up their predatory sexual abuse of women (and sometimes other men) by non-disclosure agreements. $45 million dollars were paid by or on behalf of Fox News host Bill O’Reilly to settle sexual harassment claims, almost none of which was publicly revealed due to confidentiality agreements.
Congress has sought to do something about this in the new tax law but, in most cases, it will have little or no effect on big businesses, religious organizations or Congressmen who abuse. It will harm little businessmen who care about their reputations and it will even harm victims of abuse. The Internal Revenue Code was amended to read that no tax deduction will be allowed for any settlement or payment made related to sexual harassment or abuse if such settlement is subject to a non-disclosure agreement. It also forbids anyone from deducting attorney’s fees arising from such a settlement.
