A recent article on CNN highlights the difference it makes to a medical patient when the offending physician/institution apologizes versus when it refuses to acknowledge its error. In the case where a woman’s son died due to hospital error, the hospital immediately apologized, explained to her how it had occurred, provided some financial compensation, and invited the mother to help it take steps to ensure this wouldn’t happen again. In a different case where the physician removed the wrong rib, the physician tried to cover up the error, and now the patient is suing the physician and hospital. Her lawyer says the lawsuit isn’t about the mistake; it’s because no one ever apologized.
Should the statute of limitations be tolled while a denomination follows internal dispute resolution procedures? Expressed another way: Does it violate religious freedom when disputing parties of faith following their mandatory internal process must also file their case in court or lose their chance to pursue a remedy in the civil courts?
There have been many disputes in the U.S. recently between local congregations and their denominations regarding who owns the property where the congregation meets. It’s not unusual for these to end up in court. One recently went through the Michigan court system, and the denomination is asking the U. S. Supreme Court to give them another chance in the state courts.
Defendant Bais Chabad claims the title to the property in West Bloomfield where their congregation is located. Plaintiff Chabad-Lubovitch of Michigan claims all property should be titled in its name. After several years of internal dispute resolution proceedings, Plaintiff filed suit in Michigan’s circuit court. Defendant argued that the statute of limitations had expired; Plaintiff countered that the statute was tolled while the parties tried to resolve this internally. The trial court agreed with the Defendant and dismissed the case.
Plaintiff appealed to the Michigan Court of Appeals. That court reversed, holding that mandatory dispute resolution procedures toll the statute of limitations, and that includes exhaustion of “ecclesiastical remedies.” The court referred to this as the doctrine of equitable tolling, noting that the reasons behind statutes of limitations—that plaintiffs not sleep on their rights, or expect defendants to defend stale claims—were not present here, where parties have been litigating this matter vigorously for years.
The Michigan Supreme Court tersely reversed the Court of Appeals, in lieu of granting plaintiffs’ leave to appeal, ordering that “there are no grounds on which to equitably toll the statute of limitations.” (Order 149567, May 20, 2015) So now the plaintiff is petitioning the US Supreme Court to grant cert to establish a First Amendment “church autonomy” exception to statutes of limitations. Peacemaker Ministries supports the petitioner in this case. Requiring parties to file a lawsuit to preserve their legal remedy — including their right to enforce the parties’ agreement — is contrary to the proscription in I Corinthians 6 against suing believers in court. Filing a lawsuit also makes it much more difficult for disputing parties to reconcile.
February 13, 2016 – 1:11 pm
The mother of one of the Columbine shooters told the families of her son’s victims last night on TV, “I’m sorry.” Sue Klebold, mother of Dylan Klebold, broke her years-long silence in an interview with Diane Sawyer in anticipation of release of her book, A Mother’s Reckoning: Living in the Aftermath of the Columbine Tragedy. “I’m so sorry for what my son did. And yet I know that just saying I’m sorry is such an inadequate response to all this suffering.”
Sue Klebold has spent the last eleven years trying to figure out what went wrong. She realizes now that her son was suffering from depression, whereas she chalked up his moodiness to normal adolescence. She regrets that she didn’t heed warning signs.
After shooting 12 fellow students and teachers at his high school in April 1999, Dylan and his colleague Eric Harris committed suicide. Dylan cannot apologize for what he did. Can his mother apologize for his actions? It’s tough to apologize on behalf of someone else, and the apology probably brings little relief to victims.
Perhaps more helpful to victims is to hear Sue Klebold acknowledge what she wishes she had done differently. She regrets that she didn’t search his bedroom, didn’t discover his journal, didn’t ask more questions about school. She didn’t specifically apologize for that in the TV interview; perhaps she does in the book.
The father of one of the victims said after the incident, “There’s a false teaching that God forgives everyone; he doesn’t. God never forgives the unrepentant.” Is he implying that, if God will not forgive, neither can he? But the family of Rachel Scott, another victim, has established a foundation promoting forgiveness. And Ann Marie Hochholter, paralyzed from the waist down, said, ”I realized that holding onto that anger does nothing; it just brings you down.”
February 2, 2016 – 7:52 pm
The panel of mediation experts who addressed this question in an ADR Section-sponsored phone conference today concluded, “It depends.” The more parties trust the mediator, the more the mediator can push without appearing “pushy.”
From a legal perspective, mediators can be as pushy, or coercive, as they want to be, without repercussion. Prof. James Coben of Hamline University Law School reported that, although there are a dozen cases a year nationally where parties claim mediator coercion, courts aren’t receptive to such claims, partly because courts favor settlements, and partly because the legal definition of “coercion” doesn’t fit mediation, where the complaint is not about the other party to the contract, but to a third party.
But from a professional perspective, a party who felt pushed into a resolution is not a satisfied customer. So the panel developed an impromptu list of “best practices” to help a mediator avoid pushing too hard for a resolution:
- Mediators should always begin facilitatively, in order to build trust.
- Beware that coercive possibilities increase as time goes on; the longer the mediation session, the more likely that a party will feel undue pressure.
- Attend to party requests to take a break, or to cease altogether.
- Consider letting parties leave without signing an agreement, so they can “sleep on it” – although the panel agreed that this will likely result in fewer agreements.
- Be gracious and artful in raising risk-exposing questions. If a party has a past drunk driving conviction, Mediator can ask, “Have you had conversations about how this will play out?” instead of, “You’re going to look like an idiot if this comes out!”
- Beware of party perceptions – the mediator may be communicating what the other side told her to say, but a party may perceive it as the mediator’s own opinion.
- Make sure parties go through domestic violence screening, and refuse to mediate a case where domestic violence patterns may make mediation ineffective.
January 21, 2016 – 11:38 am
Governor Snyder apologized (again) for the Flint water crisis this week. This time, I think it truly was an apology.
In his State of the State message Tuesday, as well as in interviews, he has taken responsibility for the disaster.
He began his annual State of the State address Tuesday by addressing the residents of Flint, saying, “I’m sorry and I will fix it. You did not create this crisis, and you do not deserve this…. You deserve accountability (and) to know that the buck stops here, with me… Government failed you at the federal, state and local level. We need to make sure this never happens again in any Michigan city.”
In an interview the next day, he complained of the staff in the DEQ’s Department of Water Quality, “They were too technical. They followed literally the rules. They didn’t use enough common sense to say in a situation like this, there should be more measures. There should be more concern. And it has led to this terrible tragedy that I’m sorry for, but I’m going to fix. I have to take responsibility for the state’s role in this. These folks work for me. That was a failure.”
Up until now, it didn’t seem like Governor Snyder saw the connection between the DEQ’s errors and his own responsibility, but now he does. He still hasn’t completely “Admitted specifically” what he did wrong–e.g., no mention of the fact that he appointed the city managers who kept opting to use the Flint River despite warnings it wasn’t safe–, but he recognizes that “the buck stops here.”
Another measure of a good apology is a willingness to “Accept the consequences.” Some believe that the consequence should be his resignation. He isn’t willing to do that, but he does seem to realize that another consequence is loss of trust by Flint residents—and others– in their state government.
Many recipients of apologies complain that they want action, not just words. They want to see “Altered behavior.” Governor Snyder sincerely seems to want to alter government procedures as well as the situation in Flint. Let’s hope he succeeds at both.
