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An Alternative to “Ordinary” ADR
Glenn G. Waddell*
Matthew 5:25
Introduction
In the 1982 Report on the State of the Judiciary,
Chief Justice Warren Burger accurately observed:
One reason our courts have become overburdened
is that Americans are increasingly turning to the courts for relief
from a range of personal distresses and anxieties.Remedies
for personal wrongs that once were considered the responsibility of
institutions other than the courts are now boldly asserted as legal
“entitlements.”The courts have
been expected to fill the void created by the decline of church, family
and neighborhood unity.
[1]
In the seventeen years since Chief Justice Warren
Burger penned this statement, our court dockets have become even more
overcrowded.
[2]
Litigants and potential litigants have turned
to a variety of tools for extrajudicial resolution of their disputes,
including mediation, arbitration, mediation/arbitration, early neutral
evaluation, mini-trials, negotiation and summary jury trials.
[3]
The rapid growth of alternative dispute resolution
(ADR) is evidenced by a “breathtaking expansion of court-related programs,
the rush of lawyers and nonlawyers alike to mediation training seminars,
and the pledge of thousands of businesses and large law firms to consider
ADR options.”
[4]
Some authors have even argued that attorneys
who fail to advise a client about the availability of ADR in a case
could be breaching their ethical obligations to the client and committing
legal malpractice.
[5]
We have rapidly progressed from having few options
available for extrajudicial resolution of disputes to multiple and occasionally
confusing options.
[6]
This Article describes Christian conciliation,
a dispute resolution option which, in the opinion of the authors, is
superior not only to litigation, but also to any of the other ADR methods
commonly employed by members of the Bar.
[7]
As discussed further below, the primary reason
for the effectiveness of Christian conciliation is its focus on reconciling
relationships and encouraging parties to address the root causes of
their conflict.For introductory
purposes, “Christian conciliation” can be defined briefly as “a process
for reconciling people and resolving disputes out of court in a biblical
manner.”
[8]
This definition and the specific parameters
of Christian conciliation will be discussed further below.
I. History of Christian Conciliation Although there is a growing interest in Christian
conciliation today, this ADR method employs principles of conflict resolution
which have been around for thousands of years.
[9]
Indeed, Christian conciliation is not even
the “new kid on the block” with respect to the recent surge of interest
in ADR.As Chief Justice Burger
penned his indictment against the church, family and neighborhood in
1982, attorneys involved in the Christian Legal Society (CLS) were already
establishing Christian Conciliation Service (CCS) chapters around the
nation.
One of the early leaders in Christian conciliation
was Laurence Eck, an attorney who was instrumental in establishing the
first CCS in Albuquerque, New Mexico, in 1980.
[10]
This pilot project, combined with the support
for Christian conciliation generated by the 1982 CLS annual conference,
led to the establishment of CCS chapters around the nation.By 1987, when the Association of Christian Conciliation
Services (ACCS) was formed, there were twenty-five CCS chapters around
the nation.
[11]
Prior to the formation of the ACCS, each
CCS chapter was formally affiliated with the CLS.
[12]
Subsequently, the participating CCS chapters
became members of the ACCS, along with the CLS.
[13]
The CLS has remained an active supporter
of Christian conciliation.
[14]
At the 1989 ACCS conference, Ken Sande, Director
of the CCS of Montana, was elected president of the ACCS and the ACCS
national office was moved to Billings, Montana.
[15]
In that same year, the ACCS began to develop
model conciliation procedures and training materials, including the
Rules of Procedure for Christian Conciliation and the Conciliator
Training Program (CTP).
[16]
Anne Bachle Fifer and Gary Friesen describe
the transition from the ACCS to the present state of Christian conciliation
as follows:
In the spring
of 1991, Ken Sande published a thorough study of biblical conflict resolution
called The Peacemaker: A Biblical Guide to Resolving Conflict
(Baker Books).It was well received
immediately, because it was a unique discussion of the biblical response
to conflict to which God calls Christians.One result of the publication of The Peacemaker
was increased national exposure for the conciliation education resources
being developed in Montana.
By 1993
both the ACCS and the CCS of Montana (which had taken the name Institute
for Christian Conciliation or ICC) had grown so much that it became
impracticable for the three-person staff to simultaneously carry out
the two missions and report to two boards of directors.As
a result, the ICC board asked Ken [Sande] to resign his position as
president of the ACCS as soon as the ACCS could arrange to elect a new
president and move its operations to a new office.
As the ACCS
board considered the impact this change would have on the national conciliation
ministry, it proposed that the two ministries be merged into a single
organization, which would allow greater efficiencies in missions and
operations.ACCS membership strongly affirmed this proposal
in the fall of 1993.Since then,
the ICC has continued to coordinate national efforts to promote Christian
conciliation by developing professional quality conciliator training,
maintaining a network of trained conciliators, referring and administering
cases, and sponsoring an Annual Conciliation Conference.
Later in 1996, the ICC adopted a new ministry name, Peacemaker Ministries, and divided its activities into three divisions.One division retained the name “Institute for Christian Conciliation.”The other two divisions are Partners in Peacemaking and Young Peacemakers. [17] Peacemaker Ministries, a 501(c)(3) nonprofit organization which is not affiliated with any particular denomination, remains at the forefront of Christian conciliation efforts nationally.It offers not only conciliation services, but also training and education, and exists “to equip and assist Christians to respond to conflict biblically.” [18] Although there is an ever-growing network of Christian conciliators nationally, [19] the number of CCS organizations has slowly dwindled, and even the first CCS in Albuquerque has folded. [20] The reasons for this dramatic shift in the landscape of Christian conciliation are instructive to those who are interested in participating in conciliation and perhaps in starting a local conciliation service in their area.Ms. Fifer and Mr. Friesen list a number of factors contributing to the demise of these CCS chapters; including “lack of funding, inadequate promotional efforts, lack of support from Christian community, and inadequate training of conciliators . . . .” [21] The lack of funding can be directly tied to the fact that many early conciliators “serve[d] without compensation except for out-of-pocket expenses.” [22] Although providing conciliation services for no fee is an admirable practice, it led to at least two problems: (1) severe funding problems within the CCS chapters; and (2) a perception among potential clients that the conciliation services offered were less than professional.In other words, parties to some disputes, though generally supportive of Christian conciliation, believed that it was inadequate for resolving “serious” legal disputes.In contrast, according to the current Guidelines, “[s]ome conciliators serve on a volunteer basis, while others charge an hourly fee ranging from $50 to $150 per hour.In cases of financial hardship, most conciliators will work with the parties to develop a manageable payment plan.” [23] In a complex case, the hourly fee charged by a conciliator who has expertise in an area (e.g., oil & gas law) is often higher than the range of rates quoted in the Guidelines.The ICC reports that “conciliation has been used to settle a wide variety of disputes, including contract, employment, family, personal injury, church, landlord/tenant, real estate, creditor, debtor, and professional conflicts.The monetary claims in these cases have ranged from nothing to several million dollars.” [24] The ICC’s establishment of a rigorous and professional
conciliator training program was intended to address the problem of
inadequate training of conciliators, and the ICC has made tremendous
headway in this area.Taking the
position that a professional fee will be charged in the ordinary conciliation
case has improved both the funding and perception issues discussed above.The
transition from relatively independent and isolated CCS chapters to
a more cohesive network of conciliators under the leadership of Peacemaker
Ministries has resulted in many benefits, including: more effective
promotional efforts, consistent training standards, better accountability,
elimination of duplication in administrative functions, quality control
in the development of conciliation resources, and increased networking
among Christian organizations.One
possible negative consequence of this transition has been a diminished
enthusiasm for local conciliation organizations.This
attitude stems from the perception that creating or sustaining an independent
local conciliation organization (like a CCS chapter) would unnecessarily
duplicate the activities being performed by Peacemaker Ministries and
the ICC on a national level.In
any event, the number of attorneys, pastors, counselors and others practicing
conciliation (either full-time or part-time) has continued to increase
over the years.It would seem, on balance, that this transition
has been positive.
Long before the ICC or even the CLS came into existence,
some Alabamians practiced conciliation.In
his recent history of the Alabama Baptists, Wayne Flint records one
of the first conciliations to occur in Alabama:
[Pastor James H. DeVotie’s] hard-headedness alienated
members of the [Montgomery First Baptist] congregation. . . .At a called meeting in May 1835, members voted
to terminate the youthful minister.They
also invited five ministers to help resolve their differences with DeVotie.The
only one of the five who responded was Alexander Travis, who made his
way to Montgomery to try to unify the two hostile camps.In
order to maintain neutrality, he refused to stay in the homes of either
group, registering instead at a hotel.After
each faction had its say separately, Travis called a general prayer
meeting.DeVotie at first refused
to attend but later hid behind a door to listen.Travis
prayed a passionate prayer for contrition, repentance, and unity that
so moved DeVotie that he walked down the aisle in tears to pray for
a restoration of fellowship.
[25]
Although not trained or certified by the ICC,
Travis may well have conducted Alabama’s first conciliation.As discussed further below, Travis’ prayer contained at least two
aspects essential to a conciliation—a call to repentance and a plea
for unity among Christians.
Although Alabamians did not establish a CCS chapter
in this century, there were CCS chapters in such places as Atlanta,
Georgia; Jackson, Mississippi; and Central Florida during the 1980s.
[26]
Each of these chapters folded prior to 1990,
although trained conciliators continue to practice in those areas.According to the ICC, there are currently 108
people in the Southeast who have enrolled in or have completed the ICC’s
Conciliator Training Program (CTP).
[27]
When compared to other areas of the country,
the interest in and support of Christian conciliation is significantly
higher in the Southeast and particularly in Alabama.It
was in fact this high level of interest that led Peacemaker Ministries
to hold a number of seminars and training events in Alabama in the last
few years.
[28]
II. What Is Christian Conciliation? The term “conciliation” is defined by Merriam-Webster as “to bring into agreement” [29] and by Black’s as “[t]he adjustment and settlement of a dispute in a friendly, unantagonistic manner.” [30] The Institute for Christian Conciliation provides the following definition of “Christian Conciliation”: Christian conciliation is a process for reconciling people and resolving disputes out of court in a biblical manner.The process is conciliatory rather than adversarial in nature—that is, it encourages honest communication and reasonable cooperation rather than unnecessary contention and advocacy. Christian conciliation may involve three steps.Initially, one or both parties may receive individual counseling on how to resolve a dispute personally and privately using biblical principles. If private efforts are unsuccessful, the parties may submit their dispute for mediation, a process in which one or more mediators meet with them to promote constructive dialogue and encourage a voluntary settlement of their differences. Finally, if mediation is unsuccessful, the parties may proceed to arbitration, which means that one or more arbitrators will hear the case and render a legally binding decision. [31] Except for the reference to “a biblical manner,”
“biblical principles” and “reconciling people,” the above definition
does not differ significantly from common descriptions of ADR.What
then distinguishes Christian conciliation from “ordinary” ADR?
[32]
According to the Rules of Procedure for Christian
Conciliation, the purpose of Christian conciliation is
to glorify God by helping people to resolve disputes
in a conciliatory rather than an adversarial manner.In addition to facilitating the resolution of substantive issues,
Christian conciliation seeks to reconcile those who have been alienated
by conflict and to help them learn how to change their attitudes and
behavior to avoid similar conflicts in the future.
[33]
Identifying and addressing the root causes of
a conflict not only prevents similar conflicts in the future, but also
allows the parties to avoid adopting a superficial solution to a dispute.In general, Christian conciliation is more values-oriented
than other types of mediation,
[34]
and involves evaluating the parties’ attitudes and
behavior from a moral perspective.
[35]
In light of the fact that this process is
called Christian conciliation, it is not surprising to see that
the ICC and Christian conciliators adopt the moral standard contained
in the Bible.
As stated by the Guidelines, “Christian conciliation
promotes traditional Judeo-Christian values and principles that are
an essential part of our common law and promote healthy relationships
and the proper functioning of society.”
[36]
Parties to a conciliation are expected, for
example, to be honest, do what is just and merciful, keep their word,
admit their wrongs, and make restitution for any damage they have caused.
In other words, if you use Christian conciliation,
you will be encouraged to follow the rule that God has given to govern
relations between all people: “So in everything, do to others what you
would have them do to you, for this sums up the Law and the Prophets.”
[37]
Conciliators therefore will “draw the parties’
attention to attitudes, motives, or actions that appear to be inconsistent
with those [moral] standards . . . [and] anyone who claims to be a follower
of Christ will be encouraged to obey his commands and behave in a manner
that will honor him.”
[38]
The primary and most important distinction
between “ordinary” ADR and Christian conciliation is the preeminence
of the Bible as a standard of conduct for not only the participants,
but also the conciliators.
[39]
It is in fact this focus on both the personal
and substantive issues which often results in dramatic solutions
of “impossible” disputes.
Although the ICC provides conciliation services
and administers cases for many of its trained conciliators, it is not
necessary to go through the ICC to submit a dispute for conciliation.Conciliation
services can be provided by a volunteer, a local church, a professional
mediator, an established conciliation ministry, such as the ICC or a
Certified Christian Conciliator™.
[40]
Of course, working through the ICC will at
least provide access to that organization’s network of trained conciliators.A
party may initiate conciliation simply by informing the Administrator
(generally the ICC) “of the nature of the dispute, the names of the
other parties involved, and the remedy sought.”
[41]
The ICC normally nominates one or more conciliators
for the parties’ approval.
With respect to a mediation, mediation/arbitration,
or arbitration, the conciliation process is very similar to the ordinary
ADR process.For example, a mediation conducted under ICC
rules will generally include an introduction, opening statements, presentation
of the case by each party, caucuses, discussion of possible solutions,
and (in many cases) agreement on a solution.
[42]
However, the Christian conciliation process
also includes an opening and closing prayer, the application of relevant
biblical principles, and “a discussion, sometimes in private at first,
of each party’s responsibility for the dispute.”
[43]
As discussed below, there are also significant differences
between the two approaches in the areas of caucusing, confidentiality
and the role of the church.
If the parties have agreed to a mediation/arbitration,
then issues not resolved in the mediation are submitted to arbitration.Because it is never certain that the dispute
will settle in mediation, it is necessary for the parties to define
clearly the issues in dispute prior to beginning the mediation/arbitration.If the matter proceeds from mediation to arbitration,
then “an entirely new panel of arbitrators shall be appointed” unless
“by unanimous written agreement the parties . . . authorize the mediators
to act as arbitrators.”
[44]
These rules do not appear to differ significantly
from the ordinary mediation/arbitration practices among the members
of the Bar.With respect to arbitration,
a significant distinction between ordinary ADR and conciliation is the
authority of the conciliator/arbitrator to “grant any remedy or relief
that they deem scriptural, just and equitable, and within the scope
of the agreement of the parties, including, but not limited to, specific
performance of a contract.”
[45]
In general, the judicial system is increasingly
supportive of ADR, and many judges have welcomed conciliation as a valuable
component of the overall ADR mix.Because
Christian conciliation is similar in many respects to ordinary ADR,
statutory and case law affecting ADR would likely have a similar effect
on conciliation.For example, recent case law in Alabama on the
enforceability of arbitration agreements (discussed below) would apply
to any conciliation agreement which incorporates arbitration provisions.
[46]
However, there are very few opinions which
discuss Christian conciliation specifically.The
most common reference to conciliation in judicial opinions is a simple
observation that it is available as a means of resolving disputes.
[47]
This is true also of a number of law review
articles cataloguing the various ADR options.
[48]
One recent case
which specifically addressed Christian conciliation was Encore Productions,
Inc. v. PromiseKeepers,
[49]
which related to the enforceability
of a Christian conciliation clause.The reasoning and holding of this case are discussed at length below.However,
it is worth noting here that the court’s general treatment of Christian
conciliation as a means of alternative dispute resolution was very favorable.In holding that the conciliation clause at issue was enforceable,
[50]
the court noted that “[d]istrict
courts have the power to enforce secular contract rights, despite the
fact that one of the contracting parties may base their rights on religious
affiliations.”
[51]
It also stated that “[a]lthough it may not be proper for a district
court to refer civil issues to a religious tribunal in the first instance,
if the parties agree to do so, it is proper for a district court to
enforce their contract.”
[52]
Other relevant aspects of this decision are discussed below.However, it is encouraging to see that a standard
conciliation clause, the Rules of Procedure for Christian Conciliation,
and the general concept of conciliation passed a searching review by
at least one federal district court with flying colors.
Another significant case with respect to conciliation
is Miller v. Miller.
[53]
In Miller, the parties to a divorce
had entered into a marriage settlement agreement containing a mediation/arbitration
clause requiring “the CCS [to] appoint a group of arbitrators/mediators
. . . who will mediate and, if necessary, arbitrate the outstanding
issues relating to the applicable actions [including] . . . custody
. . . .”
[54]
When mediation failed to resolve the custody
issue, an arbitration panel decided the issue in favor of the mother.
[55]
The mother sought to enforce the arbitration
order when the father refused to relinquish custody, but the trial court
declined to do so.
[56]
Although the appeals court noted that arbitration
provisions regarding child custody are not void as against public policy,
it held that such an arbitration decision is not binding on the court
if it is challenged by one of the parties as not being in the best interest
of the child.
[57]
Similarly, in C.R. and S.R. v. E.__,
[58]
the court considered an arbitration award issued
by a conciliation panel in a case administered by the CCS of Central
Florida, Inc.In this case, the parents had alleged that a Catholic priest had molested
their minor daughter.After an
unsuccessful mediation, the parties submitted the case to arbitration
and the parents were awarded $250,000 in damages.
[59]
Although the arbitration award apparently
did not contain a confidentiality provision, the CCS rules utilized
in the arbitration required that:
All statements made during the conciliation process
will be of a confidential nature and will not be made known to persons
not involved in the process.When
deemed appropriate by CCS and/or the conciliators, the case may be fully
discussed with the appropriate church authorities of parties professing
to be Christians . . . .
[60]
After issuance of the arbitration award, the parents informed church counsel that they did not intend to be bound by any confidentiality agreements, whereupon the priest sought injunctive relief in state trial court. [61] The appellate court in this case overturned a temporary injunction issued in the priest’s favor, holding that “[t]he requirement of confidentiality herein at issue is void as a matter of public policy.” [62] In both C.R. & S.R. and Miller,
the court questioned arbitration awards issued in conciliation cases.However,
neither opinion treated conciliation per se negatively.The reasoning in Miller would clearly
apply to any arbitration award addressing child custody issues in Pennsylvania,
whether that award was the product of a conciliation process or otherwise.In
S.R. & C.R. the court failed to consider the possibility
that the child abuse allegations were not even covered by the CCS rule
at issue.Under that rule, only
“statements made during the conciliation process” were to be considered
confidential, not the actual conduct of the priest.Under the Florida statute, the allegations themselves were sufficient
to trigger the reporting obligation, and those allegations preceded
the conciliation process entirely.In
any event, it is clear that the court would have treated confidentiality
provisions in this type of case the same, regardless of whether it was
a Christian conciliation arbitration or any other type of arbitration.Also, note that the ICC rule on confidentiality
differs significantly from the CCS rule discussed in C.R. & S.R.
[63]
III. Significant Issues Relating to Christian
Conciliation Although the concept and practice of Christian conciliation
raise a number of issues, this article will focus on two of the most
significant issues.They are the
enforceability of conciliation clauses and confidentiality.Other significant issues not addressed by this
article include participation by corporate entities in conciliation,
the relationship of church discipline to conciliation, insurance issues
related to conciliation, the authority of conciliators to provide injunctive
relief to parties, and non-Christians as parties to a conciliation.
One of the best ways to make sure that any possible
future conflict between parties is dealt with in Christian conciliation,
rather than in court, is to include an enforceable conciliation clause
in every contract.This Christian
version of an ADR clause is very similar to ordinary ADR clauses, except
that the conciliation clause states that the dispute resolution process
is to be conducted in accordance with rules which are biblically centered,
rather than those from a secular organization like the American Arbitration
Association.These pre-dispute
clauses, which let parties know what steps will be followed if a contractual
dispute arises, may be written in various ways, depending on party preference.
In its Guidelines for Christian Conciliation,
the ICC provides the following sample conciliation clause:
The parties to this agreement are Christians
and believe that the Bible commands them to make every effort to live
at peace and resolve disputes with each other in private or within the
Christian church (see Matthew 18:15-20; I Corinthians 6:1-8).Therefore,
the parties agree that any claim or dispute arising from or related
to this agreement, including those based on statute, shall be settled
by biblically based mediation and, if necessary, legally binding arbitration
in accordance with the Rules of Procedure for Christian Conciliation
of the Institute for Christian Conciliation.Judgment
upon an arbitration award may be entered in any court otherwise having
jurisdiction.The parties understand
that these methods shall be the sole remedy for any controversy or claim
arising out of this agreement and expressly waive their right to file
a lawsuit in any civil court against one another for such disputes,
except to enforce an arbitration decision.
[64]
Of course, parties will want to draft their clause
to fit their particular circumstances and in accordance with appropriate
state and Federal statutes and case law to ensure enforceability.
Generally, if parties have a valid written agreement,
their rights and duties are governed by that agreement.
[65]
If, when a dispute arises, a party refuses
to follow the ADR procedures set out in the agreement, and instead files
an action in court, the court must decide whether to enforce those ADR
procedures.Most court decisions on ADR enforcement deal
with pre-dispute agreements to arbitrate where there is no requirement
to mediate or use another form of non-binding ADR prior to arbitration.However, there are a few exceptions.
[66]
Additionally, all but two of these decisions
involve ordinary, as opposed to Christian, arbitration under the conciliation
model.
[67]
Because
of the similarities between conciliation and ordinary ADR and the relatively
few cases on conciliation, it is assumed that conciliation clauses are
enforceable to the same extent as and under the same limitations imposed
upon ordinary ADR clauses.This
article will briefly describe Encore Productions, Inc. v. PromiseKeepers
and the state of the law with respect to enforcement of contractual
ADR clauses generally.
The procedural combination of mediation followed by binding arbitration, known as “Med/Arb,” [68] (as used in the ICC sample clause) has become popular nationally in recent years, particularly in business contracts.As an example, the CPR Institute for Dispute Resolution [69] publishes sample pre-dispute clauses which may be adopted or edited by parties entering into a contract.Their sample clauses use multi step ADR procedures, including an initial negotiation phase, a mediation phase and, if necessary, a binding arbitration phase. [70] Negotiation will work part of the time.When negotiation fails, a mediator is often able to help parties develop creative options.This in turn increases the chance of arriving at a mutually acceptable resolution, rather than a decision imposed later by an arbitrator.With such multi step clauses in place, “commercial cases are settled 80% to 90% of the time in mediation,” [71] and never reach binding arbitration. Parties who want to use the mediation process to settle disputes out of court are wise to do so in combination with arbitration, not just because it gives the parties greater control over the outcome, but also because there are no cases that “squarely address the issue of whether a court will order parties to engage in non-binding ADR, such as mediation, as part of enforcing a pre-dispute ADR clause.” [72] While having an arbitration provision almost always assures parties they will end up in arbitration if non-binding ADR fails, a greater enforceability question arises with respect to the non-binding ADR provision.In the past, “courts have been reluctant to enforce these agreements because they:(1) usually lack statutory backing; (2) take away some of the courts power; (3) can be remedied by damages; and (4) do not ensure settlement of the case.” [73] However, in the few recent cases where a combination of non-binding ADR and arbitration is discussed, all courts but one have agreed that participating in the non-binding process was a condition precedent to other remedies.Of those non-binding processes upheld by the courts, one was an advisory opinion process and the party was ordered to submit data for the opinion; [74] one was an appeal to a policy board and the party had to undertake the appeal before pursuing any other remedy; |