Christian Conciliation: An Alternative to Ordinary ADR – Part 1
This article was originally published at 29 CUMB. L. REV. 583 (1999) and is reprinted with permission.
by Glenn G. Waddell and Judith M. Keegan
Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.
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.
A. The National Picture
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.
B. Conciliation in Alabama
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
A. The Purpose and Goals of Christian Conciliation
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.
B. The Conciliation Process
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
C. Treatment of Christian Conciliation by the Courts
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