Arbitration and Church Governance in the UMC’s Navigation of LGBTQ Conflict
Many members of the United Methodist Church (UMC) woke up to unexpected news earlier this month when it was announced some leaders of the UMC had met in private and negotiated through mediation the terms for a division of the denomination. The UMC, one of the largest Christian denominations in the world and one of the last remaining connectional global protestant denominations, has turned to mediation as a means of resolving a problem that has long dominated discourse within the UMC. While it is still not fully clear what will happen at this year’s UMC General Conference, which will take place from May 5th till the 15th in Minneapolis, or whether the negotiated plan will come to fruition, mediation served its purpose.
Prelude to Resolution
Last year, the General Conference—a representative body of the UMC consisting of lay and clergy members from around the world—held a special session of the General Conference to specifically address the issue of LGBTQ clergy and whether same-sex marriages would be performed within the denomination. The conference was the culmination of decades of conflict within the UMC that had lead to public trials, defrocked pastors, and other acts of resistance against the church’s current policy. In the lead up to the conference, the UMC formed the Commission on a Way Forward, which issued a report offering three potential ways to resolve this issue—the Connectional Conference Plan, the Traditional Plan, and the One Church Plan. Ultimately, when it came time to vote, the more conservative portions of the UMC successfully lobbied delegates to pass the Traditional Plan, the most restrictive and punitive of all the offered plans, which maintains the UMC’s existing policy banning the ordination of LGBTQ clergy and prohibiting clergy from officiating at or hosting same-sex marriages. The response was immediate. Protesting began on the floors and throughout the halls of the conference. News stories began pouring in on how the UMC was facing an existential crisis. What was meant to be a pivotal moment of clarity for the denomination was anything but.
In the fall out, a bishop from Sierra Leone gathered a diverse group of representatives, with the goal of using mediation to succeed where the special session had failed. While the special session had a strict timeline with a public display, mediation meant the process could take as long as necessary and do it without the politics inherent in the General Conference. More than 10 organizations were represented within the mediation, all from varying spectrums of the UMC and across the globe. The outcome of this mediation, as announced earlier this month, has given the UMC a way for all of the groups of the church to come together and find a solution—something the Commission on a Way Forward and the General Conference were unable to achieve.
Why We Seek Alternative Dispute Resolution
While arbitration and mediation are legally distinct, they are both common forms of Alternative Dispute Resolution—methods of resolving private disputes without resorting to the American court system. The main practical difference between arbitration and mediation is that in arbitration the parties agree to be bound by the decision of a neutral arbiter while in mediation, mediators are neutral individuals guiding the parties to a decision that they remain free to accept or reject. The key takeaway is that whether seeking mediation or arbitration, the parties have affirmatively stepped outside the standard legal system and opted for something else.
Arbitration and mediation as forms of dispute resolution within religious traditions is not a new concept. The Jewish tradition has relied on battei din (singular: beth din), or rabbinic courts, to govern disputes between Jews on both religious and secular matters. In the Islamic tradition, Sharia courts have long played a similar role on behalf of Muslim believers as well. Similarly, the Catholic tradition has relied on its ecclesiastical courts to handle issues concerning Canon law.
To some, this may seem odd. If someone fails to pay their bill for products delivered, a rabbinic court does not have the same immediate powers of the state as a secular court. They can’t seize assets, issue fines, or subpoena parties in the same way a secular court can. However, arbitration in both religious and other contexts uses contract law to make its determinations legally binding. Parties to an arbitration contractually agree to abide by the outcome of the arbitration, and this empowers state courts to enforce each litigant’s contractual promises–essentially enabling a secular court to enforce the rulings of a religious one. Moreover, religious courts may not have the power of the state, but they do have the ability to excise parties from a religious community and enforce decisions that way.
People of all (or no) faith traditions and belief systems come into daily contact with arbitration and mediation agreements, whether they know it or not. Cell phone companies, like AT&T, have relied on arbitration agreements for years as a means of increasing their likelihood of successful litigation and avoiding any costs associated with courts. Apple’s new line of credit, the Apple Card, also includes a forced arbitration clause within its fine print. Nearly every sport has a formalized arbitration agreements between its players and the leagues, something that was front page news with Colin Kaepernick and the NFL. Many of these examples do not cast arbitration in the best light, but nevertheless highlight why secular society is interested in arbitration.
Being able to set the playing field for litigation often times makes the difference between success and failure. For many cases, both secular and religious, success is decided at the beginning based on the venue, forum, and law being applied. Venue is the geographic location for a dispute resolution, dictating whether you would be in a court in Alaska or in Florida. Forum is the particular court, which is often limited based on the amount in controversy between the parties or the specific legal claim. Finally, choice of law provisions help parties decide in advance what kind of law they want their problem adjudicated with. As an example, a Jewish couple getting married could sign a prenuptial agreement stating that should they move forward with a divorce, the selected venue would be the state where they got married, their forum would be the local beth din, and the choice of law would be from the Jewish tradition.
Alternative Dispute Resolution also helps preserve the value of privacy. Court processes are public, and parties will often choose mediation or arbitration to help deal with issues that might otherwise be privileged or potentially damaging if they were made public. Additionally, privacy can be calming. Rather than having to make sure that every statement made is finely tuned for public consumption, parties can discuss their problems honestly.
Arbitration gives individuals the freedom to have their issues decided on their own terms. This is essential to any system based on freedom of choice and individual belief. Barring any instance where doing so would go against public interest, such as challenging your ex-wife and her lawyer to trial by combat with traditional Japanese katanas, governments should give ample space to individuals to address their grievances in the manner they see fit. It has been the constitutional tradition in the United States allows as much freedom as possible for religious expression and to only step in when necessary to protect the interests of others.
Next Steps for the UMC
Parties to the mediation drafted legislation that will be considered at the General Conference, with the goal of putting into practice what was agreed upon through mediation. Further, those present at the mediation agreed that they would help push for this legislation as drafted and work toward its passage. This is in contrast with the prior Special Session where the Commission on the Way Forward presented plans, but did not push for them and ultimately each ideological side was left to lobby for their own plan. Mediation made this possible.
While alternative dispute resolution through arbitration and mediation may provide all kinds of positives, it may also be unable to overcome some inherent problems lurking within the current UMC community. For one, division is still occurring. As has been pointed out by many, the proposed plan is still a divorce and there will be hurt parties on either side. Arbitration and mediation have the potential to help bandage wounds, but really only time can heal them. They merely help guide parties to outcomes, which in this case means the division of assets. Members of the UMC are past the point of trying to live together under one roof and are looking to find a way to just live on the same street. Moreover, some see the mediation as appeasement of the more conservative parts of the UMC, validating a discriminatory line of thinking instead of denouncing it. The circumstances here are not unlike those of a CEO who sees that their days at the company are numbered, but negotiates an exit strategy in exchange for their peaceful exit. Such a situation leaves many bitter, even when they end up with the mediated outcome they wanted. Finally, the proposed plan does nothing to address the lives of countless defrocked pastors who were humiliated within their churches and members who feel that their spiritual home is still unsafe. An entire generation of current and future Methodists—74% of those born between 1981 and 1996 support same-sex marriage—watched as older members of their Church turned their backs on younger parishioners. All of these concerns still linger.
The presence of a neutral third party, something found in arbitration and mediation, helped bring factions to the table, but real resolution will remain elusive. This proposed plan as negotiated through mediation, though seemingly the most promising, is still one of many to have been advanced so far. It will be presented along with many other plans as a possible way for parties to move forward together, but separately. The next few months will be spent working to reinforce the goodwill developed through mediation in hopes that the General Conference votes to affirm the proposed plan.
Amin Sadri is a graduate of both Emory Law and CSLR’s Law and Religion program. His work focuses on law and religion, constitutional law, and international law issues.