“I’ll Fly Away” to Court

September 7, 2013 – 9:03 pm

“I’ll Fly Away” to Court

We are saddened by news that the beloved hymn “I’ll Fly Away” continues in litigation. Albert Brumley, Sr., wrote this song in the late 1920’s, and it was published in 1932. It has been recorded by numerous artists, sold millions of records, and appears in numerous hymnals.  Before Mr. Brumley died in 1977, he purportedly conveyed the copyright to two of his sons. In 2006, the other four Brumley children commenced litigation to terminate the 1975 copyright transfer to their brothers. A trial was held in 2010, and the Sixth Circuit Court of Appeals just issued a ruling in this case (Brumley v Albert Brumley & Sons, Inc, http://www.ca6.uscourts.gov/opinions.pdf/13a0229p-06.pdf), remanding it to the trial court for further proceedings. The case has now been going on for seven years.

It’s been called “the most recorded gospel song,” according to Wikipedia. The lyrics promise, “Some glad morning when this life is o’er, I’ll fly away / To a home on God’s celestial shore, I’ll fly away.” One wonders if Mr. Brumley was only too happy to fly away from the brewing conflict among his children – or whether he could have done more to prevent it.

Conflicts among siblings are ripe for resolution through mediation. Is this dispute only about the royalties from this song (which presumably are huge, given its ongoing popularity)? Or, for example, are some siblings miffed that Dad excluded them when he was doling out copyrights? Or that the two brothers unfairly coerced Dad into giving them sole rights? Or that the brothers broke a promise to Dad that the brothers would share profits with the other siblings? Or that Dad knew the other four were spendthrifts? Mediation could unearth, and address, some of the underlying motivations that are driving this conflict.

Moreover, if the Brumley children are Christians, they should heed the proscription against civil litigation found in I Corinthians 6:1-7. One of Paul’s reasons for prohibiting civil lawsuits among believers was the poor witness that they provide to the wider world. The irony of a gospel song spawning years of litigation was not lost on the Sixth Circuit, which began its opinion by quoting the first two lines of the song, and observing, “Unfortunately, Brumley Sr.’s death would lead to a familial dispute concerning ownership of the Song’s copyright.”

The song just won’t sound the same to me – until we hear that the siblings have resolved this and reconciled.

Just a few more weary days and then, I’ll fly away
To a land where joys will never end, I’ll fly away.
I’ll fly away, oh glory, I’ll fly away in the morning;
When I die, hallelujah by and by, I’ll fly away.

By abfifer | Posted in Christian Lawsuits | Comments (1)

Altared Expectations

July 23, 2013 – 9:22 pm

Altared Expectations
The ABA Journal has an article in this month’s edition about lawsuits against churches, entitled “Altared Expectations.” It notes that there was a time when lawsuits against churches were incomprehensible. I think this came from both sides: parties didn’t think of bringing legal actions against churches, and courts did not entertain them even if they did. But since the 1980’s, the litigation explosion has touched churches as well.

One lawsuit mentioned in the article was brought by a Tennessee man who alleges that church leaders assaulted him in the course of trying to exorcise a demon. Another concerns a pastor who refused to allow a certain headstone in the church cemetery in North Vernon, Indiana. The plaintiff in that case, the wife of the deceased, had a headstone fashioned in the shape of a couch, sporting the logos of the Indianapolis Colts and NASCAR, as well as images of a dog and a deer, and the pastor evidently doesn’t think it belongs in a Catholic cemetery.

St. Paul, in one of his letters to the Corinthians, warned believers not to bring their civil disputes into the courts. He basically tells them that they should be ashamed of themselves for not seeking wise arbiters within their church community, and insists that it’d be better for them to be wronged or defrauded than to sue in the local court. He implies that it’s a bad witness. This article in the ABA Journal proves his point.

These cases really ought to be resolved within “the church,” whether within a local congregation, or at least among believing Christians. Unfortunately, most churches aren’t equipped to do this. Peacemaker Ministries has stepped into the breach, with a wide array of resources designed to help the Church take back its responsibility for its conflicts. It even has contract clauses that parties can insert in their contracts to specify that, if a dispute arises, it will be resolved through Christian mediation or arbitration, rather than in court. A Pennsylvania appellate court just upheld a Christian conciliation clause in an employment contract, proving that courts are willing to enforce these clauses that send the case back to “the church.”

Shame on us Christians for our “altared expectations.”

By abfifer | Posted in Uncategorized | Comments Off on Altared Expectations

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.

By abfifer | Posted in Uncategorized | Comments Off on On Compelling People Into Arbitration

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.

By abfifer | Posted in Uncategorized | Comments Off on Peacemaking in East Asia

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?

By abfifer | Posted in Learnings from Mediation | Comments Off on Should Mediators Speak to the Media?