The New York Times published a three-part series earlier this month on arbitration; the third part focused on Christian arbitration (“In Religious Arbitration, Scripture is the Rule of Law”).

The authors note that a religious arbitration allows people of the same faith to resolve their dispute based on similar values, achieving not just a settlement, but often a reconciliation. They comment that some plaintiffs claim that they must participate unwillingly in “what amounts to a religious activity,” which would seem to violate their First Amendment rights—except that courts have consistently upheld religious arbitration.

As with other forms of arbitration identified in the series, both the process and the outcome of religious arbitration are confidential – and that could lead to injustice.

Peacemaker Ministries, which may be the largest provider of Christian arbitration in the U.S., is featured in the article. As an arbitrator and board member of Peacemaker Ministries, I am keenly interested in how its work is perceived. The article didn’t criticize Peacemaker Ministries per se so much as raise questions about religious arbitration generally.

One of the concerns expressed is that, while religious arbitration may be appropriate for family and congregational disputes, it is now also being used to resolve secular disputes, like employment, contract, and wrongful death cases. In my view, this is a positive development, because the Bible implores Christians to resolve all their disputes within the church (I Corinthians 6:1-8) rather than in secular courts. But the implicit concern about whether justice is being done in religious arbitration is valid.

The series notes that, while consumers are deemed to have consented to arbitration when they purchase goods or services or otherwise enter into contracts, oftentimes they are not fully aware of the implications of the arbitration clause, and aren’t able to negotiate it even if they are. Theoretically this is less of a problem with religious arbitration, where the contract arises out of the religious setting, but there can still be a David/Goliath [metaphor intentional] imbalance where the claimant feels disadvantaged.

The article delves into three cases involving religious arbitration arising out of contract clauses calling for it. Peacemaker Ministries has administered hundreds of arbitrations over the past twenty years, and I suspect most of them were well-received. The article doesn’t mention any “successful” arbitrations, only unhappy ones.

In an employment dispute, after the Christian arbitrator found in favor of the terminated teacher, the Christian school who had employed her sought to have the ruling overturned by a federal court. This is indeed hypocritical—the Christian school wanted to have it both ways: a private process as long as it’s in their favor, but civil court if it’s not. In another case involving the Church of Scientology, a former member wants the church to return money he contributed to the church, and sums he paid for seminars he now deems worthless; he questions how neutral the Scientology arbitration panel will be. I share his concern, especially given that the church has never conducted an arbitration before.

The third case is sadder, and more problematic. A troubled young man entered a drug rehab program run by Teen Challenge, where he signed a contract that included Peacemaker Ministries’ standard med/arb clause. The young man apparently subsequently walked away from the program and died of a drug overdose. His mother wanted an explanation from Teen Challenge about what happened to her son, and she assumed she could get that only through civil litigation. Although she says she is herself a Christian, she objected in court that her First Amendment rights were violated by being forced into a Christian process; the Florida courts did not agree with her. She apparently never entered the Christian process, and instead negotiated a settlement with Teen Challenge –without getting the answers she wanted.

This case is unusual in that the claimant—the mother—never agreed herself to a Christian process. It does seem unfair, even inappropriate, that a party would be obligated to participate in a religious process that the party never agreed to, and might not agree with. In this case, the mother was also Christian, but what if she weren’t? This is, however, the law in wrongful death cases, where the petitioner “stands in the shoes of the decedent.” As the Florida court noted, if the personal representative cannot participate meaningfully in the arbitration, she should find someone else to proceed on her behalf.

The mother is quoted as saying that she didn’t want to do Bible worksheets and reconcile with the Teen Challenge staff, she wanted answers – as if these are mutually exclusive. I wonder if she would’ve been more likely to get those elusive answers if she had achieved some level of reconciliation with the Teen Challenge staff. Discovery is permitted in Christian arbitration, and discovery is becoming more common in all forms of arbitration, so it seems to me that she still could’ve tried to get answers through arbitration. At any rate, the objection seems to be with the med/arb process, not with the fact that it was Christian; if her son had signed a secular arbitration, or med/arb, contract, she would’ve been in the same position, I think.

Peacemaker Ministries adopted “Rules of Procedure for Christian Conciliation” about twenty years ago, and has modified them somewhat over the years. Courts have reviewed these rules and found them adequate, according to the article. In the Florida case, the First District Court of Appeals found that the rules of Christian conciliation were not that different from those governing secular arbitration and included only a “scattering of religious elements,” which served to “solemnize the process and to promote and advance conciliation as a spiritual goal.” So, while I’m saddened to hear of cases that had a less-than-happy ending, I continue to believe that the Christian arbitration process offered by Peacemaker Ministries is generally fair and just – as much as the civil court process is. Ideally, it would be superior.