On Compelling People Into Arbitration

June 28, 2013 – 10:22 am

Courts compel people into arbitration by enforcing arbitration clauses in contracts. Parties to the contract may argue that they didn’t know about the clause, or that circumstances have changed, but typically a contract provision calling for arbitration will be enforced. Even if the validity of the contract itself is in dispute, courts reason that parties voluntarily chose arbitration as the means by which they would resolve any disputes (Prima Paint Corp v Flood & Conklin Mfg Co, 388 US 395, 87 S Ct 1801, 18 L Ed2d 1270 (1967)).

But if the arbitration clause is in a will or trust, it’s viewed differently. This question arises when the person making out the will, or setting up the trust, specifies that anyone who disputes any provision of the will or trust must resolve their dispute in arbitration, rather than in court. The beneficiary has not agreed to arbitration in the contractual sense, so U.S. courts are divided as to whether parties to an estate dispute can be ordered into arbitration pursuant to a provision in a will or trust. Schoneberger v Oelze, 96 P3d 1078 (Ariz, 2004) cf. Rachal v Reitz, 347 SW3d 305 (Texas Sup Ct, 2011).

For Christians, the issue should be moot. The Christian Scriptures forbid Christians from suing one another in the civil courts, and enjoin them instead to resolve their differences within the church (I Corinthians 6:1-7). So, whether or not the will or trust includes an arbitration clause, believers who stand to benefit from it should choose Christian mediation and/or arbitration.
So can a Christian testator/settlor require that any disputes among the beneficiaries must be settled in Christian arbitration? If the disputing beneficiaries are all believers, the arbitration clause would reinforce the biblical command, removing all temptation to battle this out in court. Both legally and spiritually, the beneficiaries are compelled to arbitration. But if one of those beneficiaries is not a believer, should she still be compelled to participate in Christian arbitration?

These questions are before a court of appeal in California just now (McArthur v. McArthur, CA 1st District Court of Appeal No. A137133). Shortly before she died, Mother amended her trust to leave the bulk of her estate to one of her three daughters, and to mandate Christian arbitration if there were any disputes among her daughters. Another daughter is challenging both the amendment and the arbitration clause. She’s not objecting to the fact that it is Christian arbitration, but rather to the notion that she should be compelled to participate in arbitration when she never agreed to that process.

Personally, I don’t have a problem with compelling potential beneficiaries to resolve their estate disputes in arbitration. I agree with the reasoning of the court in Rachal v Reitz, supra, that the assets from a trust are a gift, and the donor can condition it on participating in arbitration and staying out of court. And I definitely endorse compelling Christian disputants to resolve their disputes within the church rather than in court. But the idea of forcing an unbelieving party into Christian arbitration against their will makes me uneasy. God loves justice, and it doesn’t feel just—even though the process itself is likely to be as just as any court proceeding, if not more. Does the daughter feel like Mother is reaching out from the grave to try one last time to shove the gospel down her throat? Even though God can work in that situation, it doesn’t feel like the way of Christ.

Rather than forcing people into Christian arbitration, I like the way that Peacemaker Ministries encourages it without requiring it, by suggesting the following language for a will:
I believe that God wants Christians to make every effort to live at peace and to resolve disputes with one another in private or within the church. I believe that obedience to these principles honors and pleases God, benefits those involved, and may lead others to faith in Christ. Therefore, trusting that my family and friends will honor my beliefs and wishes, I ask that any questions or disputes that may arise during the administration of my estate be settled by mediation and, if necessary, arbitration, in accordance with the Rules of Procedure for Christian Conciliation of Peacemaker Ministries.

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Peacemaking in East Asia

May 23, 2013 – 8:55 pm
  • The elder board complains that the senior pastor seeks their input, then ignores their advice and does whatever he wants to do.
  • A wife complains constantly about her husband; the husband rarely attends church anymore, and made excuses when the elders called him.
  • A manager isn’t sure how to discipline a Christian employee who is giving a bad witness by flouting the company’s time-off policies.
  • A college graduate wants to work full-time in Christian ministry, but his parents want him to get a good job and get married.

Sound like typical problems in your church or workplace, right? Except these all came from church leaders in East Asia. I had the opportunity to share biblical principles of peacemaking with two groups of dedicated Christians there earlier this month, and I was surprised by how similar their experiences are to ours in the U.S.

These pastors and church leaders, who came from various regions to attend this training, had already completed Resolving Everyday Conflict, a Peacemaker Ministries resource that has now been translated into their language. My colleague and I taught a three-day course on coaching a person to respond biblically to conflict, plus a half-day introduction to mediation.  As you can see from the photo, the Peacemaker Ministries brochure has also been translated into their language.W-Brochure

Participants enthusiastically received this training. Unlike in the U.S., where there are too many conferences to choose from, opportunities for organized Christian gatherings are very limited in Asia, and tend to be theological lectures. In contrast, peacemaker training is experiential—tell it, show it, do it, discuss it. As in the U.S., participants were initially skeptical about roleplaying, but came to appreciate its value. One pastor commented, “When I was playing a party, my coach was treating me the way I coach people in my congregation—and I realized how unhelpful it was to give advice before I had truly listened to their heart.” Another pastor, roleplaying the coach, was actually jabbing her finger at her “party,” reminding her to “be salt and light,” and in the de-brief afterwards they both discussed how counter-productive that approach was.

Several pastors stood up at the end of the week to describe how this training had changed their lives. “I wasn’t going deep enough—my advice was too shallow. I was telling them what they ought to do, without regard for how it affected them.” “I didn’t know how to help them deal with their conflict, so I just told them I would pray for them; now I have tools to truly help them.” “I’ve been doing this wrong for years now; I missed opportunities to minister to people, but from now on, I’ll be different.”

Contrary to what I’ve learned about cross-cultural training, participants were quite willing to raise their hands and ask or answer questions, and to admit their mistakes. In the roleplays, they found it challenging to refrain from “fixing it” or “solving it” for the other person—the same challenge that U.S. audiences face. The trainees were younger than typical U.S. audiences, which bodes well for the church in East Asia: peacemaking will be integral to how they live out their faith.

The church in this particular country is not free, so I am refraining from providing details, or showing pictures of participants. But I can safely say that I am grateful for having been able to participate in this amazing experience, because now I’ve seen first-hand how God is bringing forth His kingdom in East Asia.

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Should Mediators Speak to the Media?

April 16, 2013 – 2:49 pm

The parents of Adam Lanza, the young man responsible for the Sandy Hook murders, were divorced in 2009, after mediation. After the massacre last December, reporters tracked down the mediator, Paula Levy, and apparently asked her some questions. She was willing to answer them, at least generally. What is a mediator’s obligation to preserve confidentiality under circumstances like this?

AP reporters Matt and Adam Apuzzo posted a story after the shootings, reporting what the mediator said about the mediation involving Nancy and Peter Lanza: that they spent considerable time during the mediation talking about how to provide for their son Adam, then 17, who had been diagnosed with Asperger’s syndrome, that they were in complete agreement on how to address Adam’s needs but said little about the details of his condition. The story continues:

“The only two things I remember them saying is that she really didn’t like to leave him alone and I know they went out of their way to accommodate him,” said Levy, who recalled Nancy and Peter Lanza as very respectful of each other and equally concerned about their son’s needs.  “They worked together about it,” Levy said. “The mom, Nancy, pretty much said she was going to take care of him (Adam) and be there as much as he needed her, even long-term.”
While she would not disclose details of their discussions, Levy wanted to make clear that the Lanzas were loving parents who wanted the best for their son.
“These people are soft-spoken, gentle, both of them saying, ‘What can we do to help him?'” Levy said.

Mediators typically promise parties that the mediation is confidential, and that the mediator will not disclose anything said during the mediation. Assuming that was true in this mediation as well, the mediator believed either that her statements to the media did not breach confidentiality, or that they fell into an exception to the general promise of confidentiality. The mediator drew a line, refusing to disclose certain details, which suggests to me that she must have believed her comments were general enough that they didn’t breach confidentiality.

Standard VII of the Model Standards of Practice for Family and Divorce Mediation states, “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.” The confidentiality provision in the Model Standards of Conduct for Mediators is similar, and specifically provides, “A mediator should not communicate to any non-participant information about how the parties acted in the mediation.” (Standard V.A.2.) Ms. Levy is a member of the Association of Conflict Resolution, one of the three organizations that authorized the Model Standards.

There’s no indication that anyone was requiring the mediator to speak; most mediators understand the word “required” to mean that the mediator was subpoenaed to testify. The other exception to the Standard is if the participants agree, but in this case, one of the participants was deceased; does that mean the surviving participant could permit the mediator to speak about both parties? I would like to think that’s what happened here—that the mediator contacted Mr. Lanza and asked whether it was okay for her to speak to reporters, and that the two of them negotiated what she could and could not say. (I contacted the mediator, Paula Levy, but she declined “to discuss this case at this time due to the sensitive nature of the situation.”)

Another way that mediators get around confidentiality is by describing their personal impressions of what occurred, as opposed to repeating party statements. I don’t know whether that truly preserves mediation confidentiality, but in this case, the mediator purportedly quoted statements made by the parties, so she wasn’t trying to rely on this justification either.

I certainly understand why she would want to talk with reporters; she was vindicating herself and her clients by emphasizing that there had been no telltale signs then that Adam was a mass murderer in the making. Did she harm her clients, or do the profession a disservice, by disclosing what was discussed in that mediation? How important is it to maintain confidentiality?

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President Obama, Mediator

April 9, 2013 – 4:14 pm

There was another apology in the news a couple weeks ago: Israeli Prime Minister Benjamin Netanyahu apologized on March 22 to Turkish Premier Recep Tayyip Erdogan for a 2010 raid on a Turkish flotilla that killed 8 Turks.
Any apology is news, but of even more interest to peacemakers is the fact that this was apparently brokered by President Obama. The president was visiting with Mr. Netanyahu in Israel and reported that he encouraged him to reach out to Mr. Erdogan, and “both of us agreed that the time was right.” So Mr. Netanyahu phoned Mr. Erdogan, who accepted the apology. At one point, apparently the President got on the phone too. President Obama said afterwards that he’s been appealing to Mr. Netanyahu and Mr. Erdogan “for the last two years” for them to fix “this rupture.” The event had chilled relations between Israel and Turkey.
I’m impressed. I don’t know the details, but I know how hard it is to persuade someone to apologize. I can only imagine how much tougher it is to get a head of state even to think about apologizing for his military’s actions –as well as to get a head of state to accept an apology where his citizens were killed. Both leaders had multiple justifications for standing their ground, but their rapprochement seems to be in the best interests of both countries.
Wouldn’t we love to know the details of the negotiations?! Did President Obama appeal to their mutual interests, history of alliance, or the cost of continued conflict? Presumably the negotiations were “shuttle diplomacy,” all caucus, but it ended with a simultaneous conversation over which the President more or less presided. Now if he could only have such luck with the Senate and House leaders…

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Evaluating Another Public Apology

March 30, 2013 – 1:30 pm

Helping people make effective apologies is part of being a mediator and conflict coach, so it’s instructive to evaluate apologies. We had another public example this week from former CIA Director General David Petraeus, who began his speech to a group of veterans Tuesday with these prepared words:

“Needless to say, I join you keenly aware that I am regarded in a different light now than I was a year ago. I am also keenly aware that the reason for my recent journey is my own doing. Please allow me to begin my remarks this evening by reiterating how deeply I regret — and apologize for — the circumstances that led to my resignation from the CIA and caused such pain for my family, friends and supporters. I know that I can never fully assuage the pain that I inflicted on those closest to me, and on a number of others. I can, however, try to move forward in a manner that is consistent with the values to which I subscribed before slipping my moorings and, as best as possible, to make amends to those I have hurt and let down.”

A good apology has at least three essential elements: Responsibility, Regret, and Remedy. See, e.g., Beverly Engel, The Power of Apology. (John Wiley & Sons: 2001) pp. 66-68. This apology meets these, although it’s rather vague on the remedy. But somehow this apology leaves me empty: does he really get it?

A more detailed yardstick for measuring effective apologies is Peacemaker Ministries’ “7 A’s of Confession.” He “Addressed everyone involved,” and he “Avoided ‘if,’ ‘but,’ and ‘maybe.’” But he fell a little short on other criteria:
– “Admit specifically” – For what exactly is he apologizing? Does he know what he did wrong? “slipping my moorings” is a great metaphor, but how did that happen? Until he gets to the root of it, how can we be sure it won’t happen again?
– “Acknowledge the hurt” – Does he fully understand the impact of his transgression? Speaking to veterans, he might have acknowledged tarnishing the military’s reputation. One commentator, Robin Abcarian of the LA times, points out that another consequence is reinforcement of the perception that a man and woman cannot work together platonically.
– “Alter behavior” – What exactly is he going to do to make sure this doesn’t happen again? Obviously, “trying… to” behave “consistent with the values to which I subscribed before” wasn’t enough in the past, so what’s different now?

His is actually better than most public apologies, and he doesn’t owe the public the same level of detail that he owes his family. This is rather a lesson in how to construct an effective apology that truly will bring healing after offense.

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