By Nathan A. Adams IV
Church conflict is among the worst kinds, wrapped as it usually is in theological certainty about the rectitude of each side’s views. Outsiders consider the conflict hypocritical. Insiders wind-up disillusioned and sometimes wash-out. Entire congregations vanish.
What if more churches viewed conflict as itself a ministry opportunity? In every state, churches have the choice to do exactly this and, in so doing, to put teeth behind a commonly stated preference to resolve conflict without resorting to courts. Alternative Dispute Resolution (ADR) is the secular name for this, but you may know it better as “peacemaking” as commanded in Matthew 18.
ADR consists of conciliation, mediation and arbitration. Conciliation is an informal effort to settle a dispute without the involvement of a third party; it is two or more parties getting together to work out their differences as in Matthew 18:15. Mediation involves a neutral third person, the mediator, to help disputing parties reach agreement; a resulting mediated agreement is an enforceable contract.
Neutral third parties
Arbitration also involves neutral third person(s) as arbitrators who render a decision like a judge after a hearing at which both sides have an opportunity to be heard, often with the assistance of counsel.
ADR can be graduated, so that if an agreement is not reached in conciliation, mediation is triggered, and if not resolved in mediation, arbitration is triggered. Alternatively, conciliation, mediation or both may be required as a precursor to litigation.
You can choose to conduct ADR according to a variety of well established secular ADR rules recommended by such groups as the American Arbitration Association (AAA) or theologically-informed rules recommended by groups such as Peacemaker Ministries. The latter aspire not only to conflict resolution, but also to personal reconciliation with the help of conciliators whom they certify.
Biblical conflict resolution efforts often begin with the conciliator assigning Scripture to each side to read and reflect upon as to its application to the dispute at hand and the motivations involved. Disputants may also be asked to consider peacemaking itself as the preferred strategy to resolve the dispute.
The merits of the dispute and legal juxtaposition of the parties comes next. In a mediation, the parties usually offer their legal argument in a memorandum to the mediator, and then restate their views for the benefit of the other side in the opening session. After this, the parties caucus separately, with the mediator performing shuttle diplomacy between two rooms until deciding that another general session would prove helpful.
For simple disputes, the merits may prove no more important than the moral or equitable standing of the parties to a beneficial outcome. Even the bitterest protagonists may find themselves asking each other for forgiveness. But when disputes are sophisticated and involve great stakes, it is the rare disputant who will not expect its stronger civil legal position to require compromise by the other side, regardless of the disputant’s equitable position.
Legal training useful
Secular conciliators place all the focus here and are usually chosen, in part, for their knowledge in the field. As a general matter, the more complex the dispute, the more important it is for a conciliator to be trained legally about it and to give proper weight to each side’s legal merits.
ADR can be required as a condition of nearly any transaction. It is required in some of the most complex secular ones involving, for example, securities, construction, and financing. Churches, too, can require essentially any person to assent to peacemaking as a condition of doing business or receiving employment. Then, if the requirement is disregarded, the church may, at its option, file a relatively inexpensive motion to compel ADR and dismiss a complaint.
Civilly trained mediators and arbitrators are common, because ADR is preferred by the judiciary as a way to reduce case load. In fact, courts consider mediation such a good idea that they ordinarily order it shortly after a case is filed even when the parties do not volunteer.
Attorneys often used
As arbitrators, attorneys have the clearest advantage, because of their familiarity with procedural, evidentiary and legal doctrines. Arbitrations tend to be relatively formal proceedings, subject to many of the same rules as in a court of law. The relative civil legal strength of the parties’ positions should essentially control the outcome of the case.
The arbitrator(s) act just like judges, making evidentiary rulings, receiving evidence, hearing the testimony of witnesses, and applying the law to reach a binding determination of the dispute. A single arbitrator approved by both sides or a panel of three, with one chosen by each side and the third approved or chosen by the other two arbitrators, make the binding decision.
When considering whether to agree to or require ADR, secular companies weigh the attorney fees and other expenses of litigating, the transaction costs associated with discovery that divert staff from ordinary duties, the effect on public relations, and the potential variability (sometimes alleged randomness) of jury awards.
In short, secular companies consider their self-interest. Churches should do likewise, but obviously have additional religious reasons to conciliate. But churches do so less frequently even while promoting active counseling ministries. Conciliation is just another way to extend grace and restore peace within the church, families, and even neighborhoods and to convert conflict into ministry opportunities.
Nathan A. Adams IV is senior counsel with Holland & Knight, Tallahassee, FL.
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WHEN ADR DOES NOT APPLY
Not all claims are subject to ADR. For example, civil rights claims may avoid ADR. Furthermore, you should consult with a church-state lawyer about select claims or disputes that a church could reasonably prefer to exclude from arbitration, because of the strength of various legal defenses, the nature of the potential claims, or for other reasons.
Many employment claims, for example, that a minister might bring against a church are easily dismissed in litigation; therefore, churches may not want to subject them to arbitration.
You should also talk to a church-state lawyer about drafting the ADR provisions that your church will employ to be sure that they are enforceable and reflect the type of conciliation ministry the church intends. With the assistance of counsel, a church can even adapt the procedural rules that it will follow in ADR to be sure that the church’s theological expression is evident at all stages. — NA