Christian Conciliation: An Alternative to Ordinary ADR – Part 2

Christian Conciliation: An Alternative to Ordinary ADR – Part 2

by Glenn G. Waddell and Judith M. Keegan

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.

A.    Conciliation Clauses and Enforceability

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 Resolution69 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;75 and another was an agreement to mediate followed by advisory fact-finding.76

Additionally, lack of statutory backing is no longer quite the issue it once was.  Under current rules, federal courts are permitted to mandate mediation and other non-binding ADR when administering their dockets, even when the parties do not agree,77 and many states have similar rules for their courts.  In Alabama, for example, a pre-dispute agreement to mediate would most likely be enforceable, barring any other problems with the agreement.  There are several reasons for this conclusion.  First, there is no Alabama statute which would make a pre-dispute agreement to mediate unenforceable (unlike a pre-dispute agreement to arbitrate).  Second, there is no public policy against mediation, because it is a non-binding, voluntary process and parties can still invoke their right to a jury trial if the matter is not settled in mediation.  Third, as of May 17, 1996, Alabama has a statute requiring mediation in the following circumstances:

(1) At any time where all parties agree. (2) Upon motion by any party.  The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed. (3) In the event no party requests mediation, the trial court may, on its own motion, order mediation . . . . 78

While the statute applies to mediation after litigation has been filed, it demonstrates the support accorded mediation in Alabama.  The courts should grant the same favorable treatment where the parties have agreed prospectively by contract to use mediation.

An assertion by the Maryland court in Annapolis reveals what is probably the current enlightened outlook on non-binding ADR.  The court stated that a “written agreement to submit an existing or future dispute to a form of ADR that is not otherwise against public policy – such as mediation and neutral fact-finding – will be enforced at least to the same extent that it would be enforced if the chosen method were arbitration.”79  Thus, in view of the cases, court rules, and current public policy favoring ADR use, courts most likely will continue the trend of enforcing pre-dispute agreements that are non-arbitral and non-binding, whether standing alone or more often in combination with arbitration, unless parties successfully challenge them.  The analysis courts should generally use would consider the same issues which arise in the enforcement of an arbitration agreement:  (1) whether the parties agreed to use the particular ADR procedure at issue; (2) whether there are any contract defenses which would prohibit enforcement of the ADR provision; (3) whether any specific statute or law governs the rights and procedures of the parties; (4) whether the agreement to use ADR applies to this particular dispute; and (5) whether a party waived their right to ADR.  These issues are addressed below, but none of the cases deal with a non-binding ADR process standing alone.

1.   Encore Productions, Inc. v. PromiseKeepers

As discussed briefly above, the only case squarely addressing the enforceability of conciliation clauses is Encore Productions, Inc. v. PromiseKeepers.80   In this case, Encore Productions and PromiseKeepers had included the “short version” of the standard ICC conciliation clause in their contract,81 requiring mediation and, if necessary, binding arbitration of “[a]ny claim or dispute arising from or related to [their] Agreement.”82  When Encore Productions filed suit for breach of contract and related claims in federal district court, PromiseKeepers filed a motion to dismiss for lack of subject matter jurisdiction based on the application of the conciliation clause.  In a very well-reasoned opinion, the district court granted PromiseKeeper’s motion to dismiss, holding that:  (1) under federal common law on arbitrability, an arbitration clause survives the termination of a contract unless there is clear evidence to the contrary; (2) the broad “arising from or related to” language in the conciliation clause covered all of Encore Production’s claims against PromiseKeepers; (3) the parties’ contractual agreement that Colorado law governs interpretation of the contract means only that the arbitrator, consistent with ICC Rule 42,83 must fashion a remedy consistent with Colorado law; (4) the arbitration agreement is enforceable as a secular contract right, even though it may involve a “religious tribunal”; and (5) compelling Christian conciliation will not violate Encore’s rights to free exercise of religion under the First Amendment.  The court also held that a subcontractor who was not a party to the initial agreement was not subject to the conciliation clause and was not subject to personal jurisdiction in Colorado.84

PromiseKeepers is a significant case for at least the following reasons:  (1) it involves Christian conciliation and, specifically, the conciliation clause language recommended by the ICC; (2) the court squarely addressed Encore’s objections to the religious nature of conciliation; and (3) the opinion compiles a fairly exhaustive list of important case law and principles relevant to arbitration.  The only aspect of the decision which is potentially troublesome is the interplay between the Rules of Procedure for Christian Conciliation and Colorado law.  Although ICC Rule 4 states that “the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process,” ICC Rule 40 requires that the arbitrators must grant relief “that is in the scope of the agreement of the parties.”85  Because the agreement in this case contained a Colorado choice of law provision, the court held that “the arbitrator must fashion a result that is consistent with Colorado law.”86  It is conceivable that a result which is consistent with Colorado law could be inconsistent with Scripture.  For example, Colorado law may provide for a contractual defense which is contrary to the Bible’s admonition to keep your word.  One possible avenue around this issue is to craft a choice of law clause which acknowledges the parties’ agreement to use conciliation.87

 2.   The Parties’ Agreement to Use ADR

The Alabama Supreme Court has not addressed the question of whether parties have agreed to mediate, but in addressing the question of whether parties have agreed to arbitrate, the court has noted that “the first task of this Court, when reviewing an arbitration provision, is to determine whether the parties agreed to arbitrate the dispute at hand.”88  “Both Federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute he did not agree to submit.”89  In a recent Alabama employment case, the employer tried to enforce a binding arbitration clause in its standard employee handbook.  While the employee had signed an acknowledgment form stating that she had received the handbook, that same acknowledgment form stated that “no written statement or agreement in this handbook is binding.”  The court decided that the latter statement vitiated the operative effect of the arbitration provision contained in the handbook, and that there was no agreement to arbitrate.90

A second employee handbook case had a different result.  In Ex parte McNaughton,91 the plaintiff maintained that she did not agree to arbitration because the arbitration clause in the employee handbook was not part of a legally binding contract.  However, the acknowledgment signed by the plaintiff said that except for the provisions of the Employment Arbitration Policy the handbook did not establish a contract.  According to the Court “when one party proposes a standard contract to another party, the parties may . . . agree to be bound by certain of the clauses  . . . and not to be bound by others.”92  The acknowledgment plaintiff signed indicated that the parties agreed to be bound by one handbook provision, the arbitration provision, but not by the others, and the Court enforced the agreement to arbitrate.93

Another topic for consideration is whether non-signatories can be compelled to arbitrate.  For example, in one recent Alabama case, a husband and wife, purchased an automobile from the defendant.  Both signed the Retail Installment Sales Contract, but only the husband signed the Retail Buyer’s Order where the arbitration clause was located.  The court found that the wife could not be compelled to arbitrate, regardless of the fact that the automobile was owned by both.  The key fact was that the wife had not signed the document and therefore never agreed to arbitrate.94  In another case, however, the Alabama Supreme Court determined that the plaintiff, who was seeking benefits under an uninsured motorist provision in an automobile policy between the insurance carrier and Jack Ingram Motors, could be compelled to arbitrate his claims even though he was a non-signatory.  Because the plaintiff was pursuing his lawsuit as a third-party beneficiary of the insurance contract between the defendant and Jack Ingram Motors, he was bound to all provisions of that contract, including the arbitration agreement.95

In another case which addresses the enforceability of a conciliation clause, the Woodlands Christian Academy in Texas and its former principal, Lynn Logan, had agreed to biblically based mediation followed by binding arbitration as part of an employment agreement.  The Academy’s president had signed the agreement in his capacity as President.  When the president was sued in his individual capacity,  the Texas Court of Appeals refused to find that the president was subject to the Med/Arb clause, reasoning that he had signed the agreement as president of the Academy, and not in his individual capacity.96

In summary, to ensure enforceability, drafters of a contract containing a Christian conciliation clause should make sure that it is signed by every person against whom it might be enforced.  This is true for all conciliation clauses, but especially where arbitration is contemplated by the parties.  Additionally, the clause should not be located in a document which, by its own terms, is not enforceable.  Particularly where the parties are Christians, they may well agree (and often do agree) to abide by the terms of a conciliation clause even where its enforceability is suspect.  This is consistent with the scriptural admonition to keep your word.97

3.  Contractual Defenses to an ADR Clause

General contract defenses provide creative ways to invalidate a Christian conciliation clause or any ADR clause.  In general, a contract, including an agreement to mediate or arbitrate, otherwise valid on its face, may not be enforceable due to reasons external to the contract, and this conclusion is not altered by the existence of federal law on the subject of arbitration.  In an opinion addressing the enforceability of the Federal Arbitration Act (FAA), the U.S. Supreme Court stated:

In any event, [FAA] Section 2 gives states a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision.  States may regulate contracts including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.”  9 U.S.C. Section 2.98

If the ADR clause is unconscionable, the court will not send the parties to arbitration,99 nor will it send them if the arbitration agreement itself was induced by fraud (but if the entire agreement is procured by fraud the dispute will go to the arbitrator).100  Additionally, incapacity with regard to ability to consent to the clause may be grounds for avoidance of arbitration,101 and so may lack of consideration for the arbitration clause.102  For example, an Ohio court recently ruled that an arbitration provision in a service contract between a homeowner and an exterminator was unconscionable and thus unenforceable because the arbitration filing fee cost that the homeowners had to pay under the American Arbitration Association administration rules was more than the contract amount that the homeowner had agreed to pay for extermination services.103  The court found that pursuant to both Section 2 of the Federal Arbitration Act and the Ohio Act, the same grounds exist for invalidating an arbitration agreement as for any contract.

In a recent Alabama enforcement case, the Alabama Supreme Court said that a court should refuse to enforce an arbitration agreement where the record supports a determination of unconscionability.104  Plaintiff presented as evidence to show unconscionability an affidavit in which she testified that she and her brother were elderly, did not finish high school, had poor eye sight, had difficulty reading, and could not read small print.  The Court explained that it was looking for “additional matters that could be germane to a determination of unconscionability.”105  Then the Court proceeded to list those things which might make this arbitration clause unconscionable, and thus unenforceable: a refusal of assistance, after plaintiff notified someone she could not see or understand; plaintiff’s inability to obtain the same product from the seller or another source without having to sign an arbitration clause; the oppressiveness or unfairness of the mechanism of arbitration; or the “fairness of a discount or other quid pro quo in exchange for her accepting an arbitration agreement.”106  The outcome rested on the rule that “the party asserting unconscionability has the burden of proving unconscionability,”107 and plaintiff had not offered the right proof here.

4.  Applicable Law

One of the key issues in any enforcement analysis is determining what law governs the rights and procedures of the parties. “Even though arbitration is basically a matter of contract, arbitration and arbitration agreements may be governed by either state or federal law.”108  Often, state law and federal law have treated arbitration differently, and this has been especially true in Alabama.  Several articles describe this dichotomy more closely,109 and the following summary is only intended as a brief overview.

In determining what law applies with respect to an arbitration agreement, the courts look to see if there is interstate commerce—a question which determines whether the FAA applies.  Section 2 of the FAA provides:  “A written provision in any . . . contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.”111 the Alabama Code and Alabama’s public policy expressly prohibit specific enforcement of  pre-dispute agreements to arbitrate.112  In the past, determining whether the FAA or Alabama law applied was critical to defeating an agreement to arbitrate.

More recently, however, a series of U.S. Supreme Court cases all but removed state law from the picture, and the final blow came in a case that went up from the Alabama Supreme Court: Allied-Bruce Terminix.113  The Alabama Supreme Court invalidated an arbitration clause in an extermination contract, holding that the FAA did not apply because the parties had not contemplated interstate commerce when they entered into the contract.114  The U.S. Supreme Court disagreed and enforced the arbitration agreement clause.115  According to a recent article, “Terminix conclusively rejects any notion that the FAA does not apply in state courts.  Furthermore, it conclusively rejects the substantial contemplation test as a test for determining whether the FAA or state law applies.  Finally, it sets forth the ‘;commerce in fact’ test for determining FAA applicability.”116

The U.S. Supreme Court has repeatedly stated that Congress promulgated the FAA to avoid the common law rule that agreements to arbitrate future controversies are void as against public policy; that the FAA establishes a strong federal policy favoring arbitration;117 and that the basic purpose of the FAA “is to overcome courts’ refusals to enforce agreements to arbitrate.”118  Thus the FAA preempts state law any time the contract in dispute involves interstate commerce or a maritime transaction.  In addition, the U.S. Supreme Court has held that the FAA creates a body of federal substantive law that state courts cannot refuse to apply.119  Moreover, the Court reads the phrase “a contract evidencing a transaction involving commerce” in the FAA broadly, extending the Act’s reach to the limits of Congress’s Commerce Clause power.120  In fact, the Court’s decisions construing the commerce power indicate that it is almost limitless.

After Terminix, it is clear that

all commercial arbitration agreements (and nearly all arbitration agreement of any kind) affect interstate commerce, are within the federal commerce power, and are thus governed by the FAA.  The result is that virtually all arbitration agreements are enforceable as a matter of federal law, and all courts, including Alabama courts, are obligated to enforce them pursuant to the FAA.121

In Alabama, drafters of ADR clauses, including Christian conciliation clauses, should consider stating in the clause that the transaction involves interstate commerce and that the FAA applies.  Of course, parties must be prepared to introduce evidence of interstate commerce.  In addition, the drafter may want to include language addressing the interplay of state law and the Rules of Procedure for Christian Conciliation, an issue raised by the court in PromiseKeepers.122

5.  Application of an ADR Clause to a Particular Dispute

Another important question is whether the agreement to use ADR applies to this particular dispute.  A practitioner who negotiates a Christian conciliation agreement for binding arbitration has gained little for his or her client if the dispute that later arises is beyond the scope of the arbitration agreement, and thus never descends upon the arbitration forum.

For example, in Coastal Ford v. Kidder,123 the buyer of a used pickup truck brought a fraud action in court against the seller, alleging that the seller misrepresented the mileage on the truck, and contesting the validity of the  arbitration clause in the sales contract.  After analysis, the Alabama Supreme Court held that the arbitration provision was enforceable under the FAA, and then considered whether the provision applied to Kidder’s fraud claim. The court considered whether the language or scope of the arbitration clause was broad enough to encompass the claim sought to be arbitrated.  Whether an arbitration clause applies to a claim “is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.”124  The Court held that the language of the clause was not ambiguous, and was broad enough to encompass the fraud claim at issue.125

Similarly, in Merrill Lynch v. Kirton, a customer agreement with a securities dealer included an arbitration agreement stating that “all controversies which may arise between us… whether entered into prior to, on, or subsequent to the date hereof, shall be determined by arbitration.”126  The Court found that this clause was sufficiently broad to include “any and all controversies between them regardless of the kind of controversy or the date on which the controversy occurred.”127  The parties’ dispute was over a transaction which had occurred prior to the signing of the agreement to arbitrate.  Finally, in Ex parte Gates, the court noted with approval a broadly-worded arbitration clause covering “all disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract, or the validity of this arbitration clause or the entire contract shall be resolved by binding arbitration.”128

Clearly, drafters should take note that the broader the wording of the ADR clause, the greater chance that a particular dispute will fit within it and qualify to be sent to mediation or arbitration.

6.  Waiver

One last way that a party can try to defeat a pre-dispute ADR clause is to accuse the other party of waiving the right to use this procedure.

In an Alabama case, Morrison Restaurants, Inc. v. The Homestead Village of Fairhope, Ltd.,129 the main issue was whether a party to a food service contract had waived its right to assert any rights it might have under a Med/Arb clause in the contract.  The trial court found no waiver, and referred the dispute to mediation with non-binding arbitration to follow if the mediation proved unsuccessful.  On appeal, the Alabama Supreme Court found differently.  Morrison had provided services for over a year and Homestead had failed to pay.  Morrison sued Homestead for payment, to which Homestead answered with a general denial.  Morrison subsequently filed a motion for summary judgment; Homestead responded with its documents.  The court granted summary judgment for Morrison.  Following the entry on judgment, but before a hearing on the damages, Homestead (having new counsel) filed a motion for mediation/arbitration.

The Court cited the general two-pronged rule for waiver: “It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration.”130  It went on to say that the rule for determining waiver is not rigid, but is based on the particular facts of each case.  Applying the rule to the facts, the court concluded that Homestead had waived its right to mediation or arbitration.  Homestead had failed to seek Med/Arb in its answer or in its response to the motion for summary judgment.  Eight months passed before Homestead asserted its right, and then only after it had suffered an adverse ruling as to liability.  Homestead’s actions indicated an intent to avail itself of the litigation process and not the ADR provisions.  Referring the case to mediation or arbitration would prejudice Morrison since it had already won on the issue of liability.

Another recent case is very important to waiver in Alabama, because in Ex parte Hood,131 the Supreme Court found that a party could substantially invoke the judicial process prior to filing an answer and thereby waive its right to arbitration.  Before answering the complaint, defendant Golden removed the case from state to federal court.  At the federal court, Golden participated in formulating a discovery and scheduling plan to govern the litigation at the district court.  Two months later it informed Hood’s counsel that it intended to seek enforcement of the arbitration agreement instead of going to trial, and moved the federal court to stay the case pending arbitration.  Before ruling on Golden’s motion, the federal court granted Hood’s motion to remand to state court.  The state circuit judge held that the arbitration agreement was enforceable and that Golden had not waived its right to arbitration.  However, the Alabama Supreme Court found that Golden had failed to indicate that it would seek arbitration when removing the case to federal court, and that removal accompanied by an immediate motion to stay was the correct procedure so as to avoid waiver.  Without elaboration, the Court held that Golden’s failure had prejudiced Hood.

In order to preserve the right to enforce a Christian conciliation Med/Arb clause, the safest course of action is to file a motion for mediation and arbitration before or at the time of the answer or any other pleading which would be perceived as “invoking the litigation process.”  If timing dictates that an answer be filed before obtaining a ruling on the motion for mediation and arbitration, then the defendant should state in the answer that it is expressly retaining the right to pursue ADR pursuant to the contractual agreement.

B.    Confidentiality

As discussed briefly above,132 the ICC Rules contain fairly detailed provisions regarding confidentiality.  ICC Rule 16A states:

Because of its biblical nature, Christian conciliation encourages parties to openly and candidly admit their offenses in a particular dispute.  Thus, conciliation requires an environment where parties may speak freely, without fear that their words may be used against them in a subsequent legal proceeding.  Moreover, because conciliation is expressly designed to keep people out of court, conciliators . . . would not do so if they believed that any party might later try to force them to testify in any legal proceeding regarding a conciliation case.  Therefore, all communications that take place during the conciliation process shall be treated as settlement negotiations and shall be strictly confidential and inadmissable for any purpose in a court of law, except as provided in this Rule.133

Unless the parties agree otherwise and subject to Rule 17 (discussed below), settlement agreements reached by the parties reached in mediation are confidential.  Further, the Administrator134 may divulge “appropriate and necessary information” in six specific circumstances:  (1) during consultations with staff members or outside experts regarding a case; (2) “when compelled by statute or by a court of law;” (3) during the contest of an arbitration decision; (4) in an action against the Administrator resulting from the Administrator’s participation in a case; (5) when the Administrator deems it necessary to discuss a case with a party’s church leaders; and (6) when the Administrator must contact civil authorities to prevent another person from being harmed.135

Of these six exceptions, only the fifth relates specifically to the fact that the parties are participating in a Christian process.  The first exception covers the situation where the conciliator and/or case administrator must necessarily divulge limited information to staff members (e.g., a secretary) in order to handle a case efficiently.  In consulting an outside expert regarding a case, the conciliator, consistent with the general confidentiality rules, should disclose only the minimum information necessary to obtain intelligent input on the case.  The second and sixth exceptions address situations like the one in C.R. & S.R., discussed above.136  The third and fourth exception both address situations where a conciliator must divulge case information to defend his or her actions in a case – whether in issuing an arbitration award or in simply conducting the conciliation.

The fifth exception relates to ICC Rule 17.  According to this rule, conciliators may discuss a case with a party’s church leaders “[i]f a party who professes to be a Christian is unwilling to cooperate with the conciliation process or refuses to abide by an agreement . . . .”137  The purpose of this communication with church leaders is to request that the church leaders become actively involved in resolving the dispute.  The reason for the exception is Jesus’ command in Matthew 18:15-17 that parties “tell it to the church” when a Christian confronted with his behavior “refuses to listen.”138  ICC Rule 17 recognizes that a conciliator must be free to speak to a party’s church about a matter where such an action is required by the circumstances and Matthew 18.  The parties to a conciliation are provided with a copy of the ICC Rules and are made aware of these exceptions from the ordinary confidentiality rules.

As discussed above, both ordinary mediations and conciliations use a caucus, or a meeting between the mediator and one party in the dispute.  However, the caucus in conciliation differs from the caucus process in ordinary mediation in at least two respects: (1) caucus discussions will, as much as possible, “focus on the party who is present [in the caucus] rather than on the absent party”; and (2) conciliators are allowed to “discuss with the other parties any information obtained during . . . a caucus.”139  The caucus is for the consideration of possible solutions, as well as discussion of a party’s attitudes, conduct and responsibilities.  The primary reason for the caucus limitations contained ICC Rule 21 is the biblical requirement that parties in a dispute speak directly with one another about the dispute and not to third parties in the absence of the other party.140  These limitations not only force the parties to focus on their own conduct in caucus, but also promote the type of face-to-face discussions between the parties which often result in long-term solutions to disputes.

IV.  Conclusion

While Christian conciliation may not be an acceptable dispute resolution option for everyone and every case, it is well suited for parties who profess to be Christians and desire to handle their conflict in accordance with biblical principles.  Given the high percentage of professing Christians in this nation, and particularly in the Southeast,141 the conciliation model is well suited to serve the dispute resolution needs of our culture.  Furthermore, as trained conciliators and others teach the basic principles of biblical conflict resolution in their churches, families and communities, the benefits expand beyond the sphere of litigation and into other arenas.  As people apply these principles to their lives, we are convinced that the general benefits to society at large far outweigh even the beneficial effect that the availability of Christian conciliation will have on the court system.

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February 16, 2015