Christian Conciliation Clause Upheld by Federal Court

Here’s another case where a court enforced the contract clause requiring parties to resolve their disputes in a Christian process rather than in the courts: Pettey v Share, US District Ct, SD-Miss, 10-01-2019.

Mr. Jernigan signed up for Medi-Share, a Christian organization in which members share medical costs, in 2014. Mr. Jernigan evidently later suffered injuries from a car accident. After he died, his Estate Administrator, Jacqueline Jernigan Pettey, sued Medi-Share in Federal Court, seeking reimbursement for Mr. Jernigan’s medical expenses. Medi-Share filed a motion to compel arbitration, which the court granted. The Estate asserted that there was no arbitration agreement. The court ruled that there was.

Medi-Share is a program run by Christian Care Ministry, Inc. (CCM). The Membership Form includes this clause:

2) I agree that in cases where all administrative appeals have been exhausted and after an appeal process, any and all remaining disputes will be settled safely as follows: by biblically-based mediation, not in a secular court. If resolution of the dispute and reconciliation does not result from mediation, the matter shall then be submitted to an independent and objective arbitrator for binding arbitration. I agree that suing fellow Christians, including Christian ministries, is contrary to scripture (1 Cor. 6:1-8); therefore, I will bring no suit, legal claim or demand of any sort against CCM in the civil court system, with the sole exception of enforcing any favorable arbitration award or mediated agreement.

The Court found that this provision in the Membership Form not only contained an arbitration provision, but also bound the Member to the Medi-Share Guidelines, which also contain an arbitration provision:

  1. Biblically-Based Mediation and Arbitration.As Christians, the Members and the staff of Christian Care Ministry believe that the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian community in conformity with the biblical injunctions of 1 Corinthians 6:1-8, Matthew 5:23-24, and Matthew 18:15-20. Therefore, the parties agree that any claim or dispute arising out of, or related to, this agreement or any aspect thereof, including claims under federal, state, local statutory or common law, the law of contract or law of tort, that may remain after a Member has exhausted his appeals provided for in Section XIII. B., including a determination whether this arbitration provision is valid, shall be settled by biblically-based mediation. The mediation shall be conducted in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries (complete text of the rules is available at HisPeace.org), with each party to bear their own costs, attorney’s fees and 50% of the mediator’s fee, and with the mediation filing fee to be borne by CCM. If resolution of the dispute and reconciliation do not result from mediation, the matter shall then be submitted to an independent and objective arbitrator for binding arbitration. The parties agree that the arbitration process will also be conducted in accordance with the Rules of Procedure for Christian Conciliation, with each party to bear their own costs, attorney’s fees, and 50% of the arbitrator’s fee, and with the arbitration filing fee to be borne by CCM. Each party shall agree to the selection of the arbitrator. If there is an impasse in the selection of the arbitrator, the parties agree that the Institute for Christian Conciliation shall choose the arbitrator. The parties agree that these methods of dispute resolution shall be the sole remedy for any controversy or claim arising out of this agreement, and they expressly waive their right to file a lawsuit against one another in any civil court for such disputes, except to enforce a legally binding arbitration decision.

The federal judge got it right. The contract clause is functioning as it’s supposed to: to direct disputes between Christians to be resolved within the church rather than in court. This case helps assure parties that this contract clause is legally-enforceable.

In full disclosure, I serve on the boards of both Peacemaker Ministries and the Institute for Christian Conciliation (they are now two separate entities).

 

Liberty University Conflict

We were sad to see yet another lawsuit between Christians: Liberty University has sued its former president, Jerry Falwell, Jr. After resigning from the presidency last fall, Falwell sued the University for defamation, but he dropped that suit in December; now the University has sued him for breach of contract.

Rather than file these very public lawsuits against one another, these parties could resolve their dispute privately through the Institute for Christian Conciliation. Many Christian organizations have inserted clauses into their contracts — such as employment contracts — requiring that parties resolve any dispute privately through Christian conciliation rather than in the courts. This is not only consistent with Scripture (I Corinthians 6:1-7), it can benefit the parties by keeping the process private and possibly leading to reconciliation. It’s not too late for the parties in this lawsuit to bring their case to the church instead.

Another Dimension to Forgiveness: Caste

I have written several posts about forgiveness where the victim, who happened to be black, has publicly forgiven the offender, who happened to be white. I thought it was especially impressive because black people in America have more to forgive.

After reading Isabel Wilkerson’s powerful book, Caste (Random House: 2020), I see another dimension to these stories, and I see how I, as a white person, was at best naïve about the deeper dynamic at play in these incidents.

These cases included the 2019 sentencing of the (white) Dallas police officer who killed a (black) man eating dinner in his apartment because she thought he had invaded her own apartment; not only did the victim’s brother forgive the officer, even the judge forgave her. (“Forgiving a Killer”) Another was the Grand Rapids case of the four white boys who brutally killed Willie Jones, a black man unknown to them, where his brother, and later his nephew, publicly forgave them. “The Reverend Charlie Jones,”; Forgiving a Murderer.  There was also the 2016 hearing for Dylann Roof, the (white) killer of nine (black) Charleston church members, where the daughter of one of his murder victims publicly forgave him, spurring other family members to forgive.

The “forgivers” in these stories acknowledged the role that their Christian faith played in their decision to forgive. That’s what attracted me to these stories.

But Wilkerson points out that, in the United States, forgiving white people is not an option for black people; it’s a survival tool. When viewed against the backdrop of the American white supremacy caste system, these acts are not surprising but expected. She quotes Roxane Gay, who wrote an article about the Dylan Roof incident: “White people embrace narratives about forgiveness so they can pretend the world is a fairer place than it actually is, and that racism is merely a vestige of a painful past instead of this indelible part of our present.” (Caste, Ch. 22, pp. 287-88) Gay notes that black people “have to forgive time and time again while racism, or white silence in the face of racism, continues to thrive.” There is, as author Brandon Tensley observes, an expectation from white citizens that black outrage will be tamed.  Indeed, racism was involved, to some extent, in each of the cases noted above, where white people murdered black people.

I reviewed all my posts about crime victims forgiving perpetrators, over a dozen; in some, I don’t know the parties’ race, but I don’t have any stories where a white person forgave a black person. Such events do occur – see the story about Toni Nunemaker, who befriended the mother of the (black) boy who killed Nunemaker’s 9-year-old (white) grandson Connor — , but my own blog proves Wilkerson’s point, what she calls “black forgiveness of dominant-caste sin.”

I greatly admire anyone who is able to forgive a crime, especially when the offender (like Roof) fails to express any remorse; and I assume these forgivers did so primarily out of obedience to Jesus’s command to forgive (most famously in what is known as the Lord’s Prayer, “forgive us our trespasses as we forgive those who trespass against us,” Matthew 6:12). But I also see now that it’s more complex when a black person (again) forgives a white person.

Church’s Responsibility to Its Own

No church wants to face what Crabapple First Baptist Church faced last week: news that one of its members had murdered eight people on a shooting spree. The church needed to determine its response, and communicate it not only to its own congregation but to the community and the world. Not easy to do while in shock and under media pressure to make a statement.

The statement that the church issued is carefully worded – but odd. The church condemns the sin, and expresses support for the victims. But the statement also condemns the perpetrator. It says that the shooter alone is responsible for his “evil actions and desires,” the result of “a sinful heart and depraved mind” for which he “is completely responsible.” It asks for prayer for the victims’ families, for the communities affected, for the shooter’s family and for the church family. It does not ask for prayer for the shooter himself, an obviously troubled young man.

The church seems to have given up on this young man.

In Matthew 18, Jesus outlines a process for addressing sinful behavior, recognizing that people don’t always repent when confronted with their sin. This passage is the basis for church discipline, a process spelled out in the bylaws of most churches. The process is reserved for serious ongoing sin, and its goal is usually stated as repentance and restoration. Although church discipline may culminate in separating the errant individual from the congregation, the goal is still repentance and restoration. In Matthew 18:17, Jesus said, “If he refuses even to listen to the church, treat him as you would a pagan or a tax collector.” That sounds like we get to condemn the sinner—until we recall how Jesus treated pagans and tax collectors: he shared the gospel with them and never ceased striving to show them God’s love.

Crabapple Church says it completed the process of church discipline with this young man. Usually the process is lengthy – it can go on for months – so the church has evidently been aware of this young man’s problems for a long time. The outcome of church discipline in this case was to remove him from membership, the ultimate step for an unrepentant member. A church may counsel its members not to have fellowship with a person who is under discipline, in keeping with I Corinthians 5:9-13, which exhorts believers not to associate with an unrepentant sinner. Crabapple Church cited I Corinthians 5 in explaining why it removed this young man from its fellowship. Perhaps this is why its statement distances the church from its former member.

In my church’s Conflict Resolution Policy, the section on dismissing an offender from membership is followed by a section headed “Restoration,” describing how the church will “warmly and lovingly restore” to fellowship a person who comes to repentance. This was by design, to remind both the church and the offender that the primary mission of the church is to seek and save the lost.

Although the official stance of Crabapple First Baptist Church towards this young man seems to be rejection, I hope there are individuals within the church who are praying for him and ministering to him. If he ever needed the support of a loving church, it’s now, when he’s broken.

 

Are Mediator Statements Confidential Too?

Confidentiality in mediation typically refers to communications made by the parties and their attorneys. What about statements made by the mediator? Are those confidential? And if so, what should a mediator do when a party publicizes a statement allegedly made by the mediator in mediation, especially if it’s inaccurate?

This happened to a mediator colleague recently. In a workplace mediation involving an allegation of sexual harassment against the male CEO, the female accuser sensed that the mediator did not believe her. When other evidence later revealed that there was indeed serious sexual harassment, the female accuser wrote a letter to the board listing all the ways it had missed opportunities to stop the harassment. In that letter, she wrote that the mediator told her she was insane for accusing her boss of harassment, and she named the mediator. The letter went public.

Obviously this party was unhappy with the mediation. She may have assumed that, since the company was paying for the mediation, the board ought to know “what really happened.” She may not have intended for the letter to go public. Nevertheless, she’s damaged the mediator’s reputation.

Was the party free to disclose what the mediator told her in the mediation? The first place to look for an answer to this is the retention agreement between the mediator and the parties. My retention agreement makes communication “between the mediator and any party” confidential. I have an expectation that, just as I am bound not to disclose what they say to me, the parties will not disclose what I said to them. If the mediation is conducted pursuant to rules or laws regarding confidentiality, such as Michigan Court Rule 2.412, they also likely make mediator statements confidential. So the party arguably breached her agreement with the mediator.

She may not have known how to complain about the mediator. Since this was an internal, pre-suit dispute, I assume no lawyers were involved. A dissatisfied party could ask their lawyer for help in addressing an unhelpful mediator, but often the dissatisfied party sees their lawyer as part of the problem. (See, e.g., Vittiglio v. Vittiglio, 830 NW2d 385 (2013)) There are several ways a party can complain about an unscrupulous mediator. If the mediator is affiliated with a court program, the party can complain to the court; if the mediator is a member of a certifying organization, it usually has a complaint procedure; if the mediator is an attorney, a grievance can be filed.

How should the mediator respond? If the party breached her mediation agreement, the mediator could sue – but mediators are dedicated to helping parties avoid litigation and are loathe to sue the source of their business. Should the mediator try to defend himself? If the mediator really did imply that this party was insane, it will be tough to explain how that made sense in the context of the mediation. If the mediator did not say it, his defense makes the party out to be a liar. Either way, the mediator is violating the confidentiality promise, because any explanation will necessarily disclose more mediation communications.

Mediators publicly accused of wrongdoing are in the same boat as anyone else publicly accused: any explanation sounds like an excuse, any defense sounds evasive. Public apologies are difficult to do well, and are not appropriate if the mediator believes he was innocent of wrongdoing. (Saying, “Sorry if you felt hurt” is worse than not saying anything.)

This party could have achieved her purpose of informing the board, without disclosing the mediator’s name in her letter. It might still have breached her confidentiality agreement, but would not have been defamatory too. Then she could have pursued a complaint against the mediator through an organization that certifies, licenses or otherwise authorizes the mediator.

Mediator names are not usually disclosed, for good reason: it’s the parties who settle cases, not the mediator. The remedy for addressing mediator misbehavior is not naming the mediator on the internet, but pursuing a process designed to address mediator misbehavior. Perhaps we mediators need to do a better job of publicizing these “mediator discipline” options so parties don’t feel that their only option is to go public.

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