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.
“The Future of Religious Arbitration in the U.S.”
Lee Ann Bambach
Religious arbitration and dispute resolution are well established here in the United States, and are practiced in some form by a wide variety of religious communities. This online conference and the accompanying essays have included examples of Christian Concilation, Catholic arbitration [forthcoming], orthodox Jewish batei din (rabbinic tribunals), the Ismaili Muslim Conciliation and Arbitration Board (CAB) system, predominantly Sunni Muslim dispute resolution, and arbitration within the Church of Scientology.
On the whole, religious arbitration and dispute resolution systems have proven remarkably adept at adjusting to the requirements of the US legal system, and modern American arbitration law provides a great deal of leeway for people of faith to develop strong, faith-based systems that harmonize between religious and secular legal norms. This has benefits for both faith communities and the U.S. legal system. Like with secular forms of alternative dispute resolution, faith-based ADR reduces the load on an already overburdened judicial system and generally provides users with a quicker, cheaper way of resolving disputes than litigation does.
On the faith side, while such dispute resolution systems may differ in the details, they share much in common: they enhance the freedom of the parties by giving them greater choice over both the procedures and the law that will apply to their dispute, and their flexibility enables disputes to be handled in a way that is culturally and linguistically appropriate. In addition, religious dispute resolution generally entails a heavy emphasis on conciliation that includes not only the actual parties to a dispute, but which extends outward to promote cohesion and harmony within the wider religious community. But for people of faith, the greatest benefit of religious arbitration and dispute resolution is that it enables them to resolve their disputes in accordance with what they believe is their religious duty, regardless of whether the dispute involves a family disagreement or a multi-million dollar commercial contract.
As with the benefits of ADR, many of the concerns voiced about the use of religious arbitration and dispute resolution — such as the enforcement of arbitration agreements and potential harms to vulnerable or less powerful disputants — are not unique to religious forums. Even in a secular setting, US courts today tend to demonstrate an extreme deference to arbitration agreements, resulting in situations where employees or consumers are bound to arbitration agreements they sometimes never realized they were entering into, or which they were, in effect, forced to agree to in return for a job or to receive a product or service. Barred from pursuing any claims in court, mandatory arbitration agreements all too often bar employees or consumers from pursuing their claims in court and require them to submit to arbitration that, research shows, overwhelmingly favors employers and corporations.
Looking to the future, I would like to touch on three main points that those who practice and promote religious arbitration and dispute resolution should consider in order to ensure that this type of dispute resolution can thrive and be accepted both within their own religious communities and by our secular legal system.
First, as Daniel Teater pointed out in his essay, “Managing Power and Abuse Dynamics,”[forthcoming] it is imperative that religious dispute resolution forums do a better job of recognizing and addressing power imbalances and abuse. Power imbalances — when the parties that are participating have different sources and levels of power — are not a rare occurrence; indeed, what is more unlikely is a dispute where the parties are exactly equally matched on all levels. In some situations, such as where there is domestic or other types of violence or abuse, mediation or arbitration may in fact be counterproductive, putting a victim at greater risk and hindering or even precluding them from obtaining critical physical, financial, and psychological relief.
Even in cases that are less extreme, involving “mere” imbalances of power rather than actual abuse, such imbalances can present themselves in a variety of ways: there may be differences in size, age, gender, race, knowledge or experience between the parties. One of the parties may be more powerful due to having greater financial resources, connections, or position. Each of these factors, alone or in combination, can skew dispute resolution proceedings and disadvantage the less powerful party. It is impossible to resolve disputes in a way that delivers true justice and real conciliation to all the parties if the proceedings are tainted by the presence of a power imbalance or abuse. Accordingly, it is incumbent upon religious dispute resolution professionals not only to seek out and receive training on how to recognize the presence of abuse or a power imbalance, but to ensure that they develop the appropriate tools and resources to address them.
It is also important to remember that power imbalances can exist not only between the parties, but can also be embedded in the dispute resolution process and sometimes in the religious law itself. This disproportionately affects women, who in most religious traditions are less likely to be religious scholars who can shape the understanding of religious law or be permitted to serve as a judge or arbitrator. Women who come into a religious dispute resolution tribunal may therefore have a harder time having their voices heard and their concerns recognized, most especially when they are the only woman in the room. No religious law or tradition is static, however, and ways can be found to ensure that women’s interests are represented and protected — for example the use of women rabbinical advocates (toanot rabbaniyyot) to represent and advocate for women seeking divorce in Israeli rabbinical courts.
Second, arbitration, being a creature of contract, should be a voluntary choice of the parties. The U.S. courts and secular legal system sometimes seem to have lost sight of this, forcing employees and customers to abide by mandatory arbitration clauses they had little choice about and that work to their disadvantage. However recent developments — such as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment” Act amending the Federal Arbitration Act and signed into law the same day this online conference took place, and the advent of “mass arbitration” aimed at corporations — suggest that the tide may be turning, with a growing movement towards protecting individual’s rights to decide whether to pursue arbitration or not.
If pursuing arbitration or other forms of dispute resolution should be generally voluntary, this should go double for religious arbitration. Having parties dragged, kicking and screaming, into a religious arbitral forum —such as has taken place in the Garcia and Bixler cases where the Church of Scientology has used broadly written mandatory arbitration clauses to try to force ex-members to arbitrate claims against the Church and its leaders in a church-affiliated forum under the rules established by the church — is, quite simply, bad on several levels. In religious communities it may lead to members being increasingly unwilling to agree to bind themselves to what they view as unfair or one-sided arbitration clauses, or even abandoning religious communities or traditions they feel use religious tribunals to perpetuate injustices. In the judicial system, it can create bad precedent that, binding or nonbinding, creates unfortunate hurdles for all religious arbitration. And in the court of public opinion, it is even worse, leaving judges, lawyers, and the general public with a highly negative impression of religious arbitration and dispute resolution, regardless of the religious tradition engaging in it.
Which leads me to my third point: For better or for worse, all religious communities in the United States are, to a very large extent, in this together. Clearly, each has its own distinct set of beliefs, traditions, and practices. However, all face common challenges, including the fallout from bad precedent and bad press referenced above, as well as the more concrete threat of so-called “anti-sharia laws” that have been passed in a number of states, and which may block awards issued by religious arbitral tribunals from being enforced in courts, thereby depriving disputants who use a religious forum of the same remedies that would be available to them in a secular arbitral context.
It therefore makes sense for those interested in the success and continued growth of religious arbitration and dispute resolution to reach across confessional lines and help each other. This should be done not only to confront mutual challenges and threats, but also, in a more positive vein, to learn from one another, sharing best practices and insights on how to negotiate between the religious and secular realms in which they work. Taking such steps together will help ensure that religious arbitration and dispute resolution continues to thrive and be seen as a legitimate and valued part of American society. ♦
Lee Ann Bambach is a Senior Fellow at the Center for the Study of Law and Religion and Adjunct Professor at Emory Law School. Her research focuses on the intersection of religious law and secular law, with a particular emphasis on Islamic law, especially faith-based dispute resolution and Islamic finance. She clerked for the late Honorable Sam J. Ervin III of the Fourth Circuit and worked in the D.C. office of Latham & Watkins.
Bambach, Lee Ann. “The Future of Religious Arbitration in the U.S.” Canopy Forum, June 22, 2022. https://canopyforum.org/2022/06/22/the-future-of-religious-arbitration-in-the-us/.