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A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.
“Reversing Course on Conciliation Clauses”
Ken Sande
Although conciliation clauses (AKA, “religious arbitration clauses”) may be appropriately used in business contracts involving parties with equal bargaining positions, they are susceptible to misuse in membership agreements for churches and other religious organizations, where there is an inherent power imbalance between leaders and members. This presentation will elaborate on the potential misuses of these types of clauses and suggest alternative wording for nonbinding clauses that encourage a voluntary faith-based process for resolving conflict while preserving parties’ ability to pursue legal remedies if they believe that to be more appropriate for their situation.
I can no longer recommend that churches and other religious organizations use legally binding conciliation clauses (also known as “religious arbitration clauses”) in their membership agreements.
I have supported appropriately drafted versions of these clauses for many years and have seen them be used in constructive ways by most churches. Unfortunately, I’ve also seen unscrupulous church leaders use them to oppress members who asked unwanted questions or declined to support questionable policies or practices.
Religious arbitration clauses can be especially repressive when they are deliberately designed to favor one party over another. For example, a recent lawsuit in Los Angeles, California, involved Scientology members who had signed agreements to submit any disputes with members to binding arbitration before a three-member board of practicing Scientologists.
I deplore arbitration clauses that give a religious body this kind of advantage in selecting arbitrators who are likely to favor its position. This is why our ministry’s Rules of Procedure for Christian Conciliation contains several safeguards against the misuse of a conciliation process, such as ensuring the selection of conciliators and a case administrator who are approved by all parties as being neutral and qualified.
Even with these types of safeguards, however, I have grown increasingly concerned about how even the most carefully developed conciliation clauses and procedures can still be misused.
For example, some churches could encourage members to affirm these clauses without their being fully informed of the fact that they are signing away their right to resolve conflicts through legitimate civil court processes. If conflicts later arise, members may discover that they are being compelled to participate in a conciliation process that they never fully understood.
Even when these clauses are not legally enforced, some unscrupulous church leaders have threatened to invoke them in order to silence or intimidate church members who were questioning or resisting the leaders’ actions.
Even when these clauses are enforced with good intentions, church members may still feel they are being forced into a process they don’t fully understand or trust. This can result in suspicion and anxiety, which undermine the sense of safety and fairness needed for a successful conciliation process.
A Valid Use of Legally Binding Conciliation Clauses
Before I describe the kind of revised clause that I now recommend for churches and religious organizations, I want to reaffirm my support for the use of legally binding conciliation clauses between parties with equal bargaining power, such as two commercial businesses owners who share similar religious beliefs. These types of clauses have been used in thousands of business contracts over the years, especially in Jewish and Christian communities, and have helped many people avoid adversarial lawsuits and instead resolve their differences in a conciliatory manner that was informed by their shared religious beliefs.
Legally binding clauses are typically written along these lines:
The parties to this agreement are Christians and believe that the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church (see Matthew 18:15-20; 1 Corinthians 6:1-8). Therefore, the parties agree that any claim or dispute arising from or related to this agreement shall be settled by biblically based mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Christian Conciliation Service®, a division of Relational Wisdom 360. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.
These types of legally binding clauses enable parties to avoid the stress and expense of the secular legal system. They should not be used merely for that reason, however. Nor should they be used as a means to conceal wrongdoing, place others at a disadvantage, or deprive others of valid legal rights and protections. Instead, conciliation clauses should be used by those who are committed to biblical principles of peace, justice, and reconciliation, and who place a high priority on honoring God and preserving relationships even in the midst of conflict.
Since these clauses limit parties’ access to the legal system, they should be used only when all parties to a contract are in an equal bargaining position and have been provided with complete and detailed information about the conciliation process so that they know precisely what they are committing to and what legal limitations they are accepting.
Informal Commitments to Christian Conciliation
In light of the power imbalance that exists between church leaders and individual members, I now recommend that they use informal commitments to Christian conciliation in their church bylaws and membership covenants rather than legally binding clauses. For example:
(For bylaws) If there is a conflict between members or leaders of this church, we commit to making a sincere effort to resolve it according to the peacemaking principles set forth in Scripture (see, for example, Prov. 19:11; Matt. 5:9, 5:23-24, 7:3-5, 18:15-20; 1 Cor. 6:1-8; Eph. 4:29-32; Gal. 6:1; Phil. 2:1-4; www.rw360.org/peacemaking). If we are unable to resolve a conflict through personal conversations or informal mediation, as described in Guiding People Through Conflict, or through the established disciplinary process of this church, we agree to give prayerful consideration to resolving the matter through formal Christian conciliation, which is described in the Handbook for Christian Conciliation.
(For membership covenant) If I have a conflict with another member or a leader of this church, I commit to making a sincere effort to resolve it according to the peacemaking principles set forth in Scripture (e.g., Prov. 19:11; Matt. 5:9, 5:23-24, 7:3-5, 18:15-20; 1 Cor. 6:1-8; Eph. 4:29-32; Gal. 6:1; Phil. 2:1-4; www.rw360.org/peacemaking). If we are unable to resolve a conflict through personal conversations or informal mediation, as described in Guiding People Through Conflict, or through the established disciplinary process of the church, I agree to give prayerful consideration to resolving the matter through formal Christian conciliation, which is described in the Handbook for Christian Conciliation.
These types of informal clauses encourage the use of conciliation while also ensuring that people will enter into such a process voluntarily and with the opportunity to carefully evaluate the process in light of their religious convictions; and to seek outside advice that enables them to decide whether this process is appropriate for their particular situation.
Conciliation Clauses for Employment Contracts
In light of the power imbalance that exists between employers and employees, RW360 recommends that employers use an informal commitment to conciliation (like the examples provided above) rather than a legally binding clause with their employees. An informal commitment makes it more likely that employees will enter into a conciliation process willingly and voluntarily, which will set the stage for a more productive and successful conciliation process.
If an employer or employee prefers to use a legally binding conciliation clause, however, they certainly have the right to suggest such an option. When doing so, they should ensure that all those concerned have carefully read all of the information related to such clauses (including the Handbook for Christian Conciliation) and have had the opportunity to seek legal advice from an attorney. This kind of careful evaluation will ensure that all parties have been well informed of their rights and options and are entering into these agreements with genuine informed consent.
Conclusion
My initial support for conciliation clauses came from my reading of 1 Corinthians 6:1-8, where the Apostle Paul exhorted the early Christians to resolve their conflicts – including their legal conflicts — within their churches rather than turning to the civil courts. Having seen incredibly complex disputes resolved through Christian conciliation in a way that was far more redemptive than anything a civil court can offer, I still believe that it is wise for people of faith to seek to resolve their differences in ways that are consistent with their shared religious beliefs.
But because we live in a fallen world where some religious leaders and organizations may abuse their power, I now believe that it is prudent and loving for churches and religious organizations to discontinue the use of legally binding conciliation clauses and to instead use language that will invite and encourage (rather than force) members to resolve their differences in ways that reflect their shared religious convictions.
This approach can encourage conciliatory responses to conflict while simultaneously protecting people in weaker power positions from being abused by these processes. Such an approach is clearly consistent with the timeless commands of Scripture to love our neighbors as ourselves and to treat others as we would like to be treated.♦
Ken Sande is the founder of Peacemaker Ministries and RW360. Trained as an engineer, lawyer and mediator, Ken has conciliated hundreds of family, business, church and legal conflicts. He is the author of numerous articles and books, including The Peacemaker, which has sold over 500,000 copies in twenty languages.
Recommended Citation
Sande, Ken. “Reversing Course on Conciliation Clauses.” Canopy Forum, March 17, 2022. https://canopyforum.org/2022/03/17/reversing-course-on-conciliation-clauses/.
