Christian Conciliation:
An Alternative to Ordinary ADR – Part I
by Glenn G. Waddell and Judith M. Keegan

This article was originally published at 29 CUMB. L. REV. 583 (1999) and is reprinted with permission. It was last posted by Peacemaker Ministries on February 16, 2015.  [Editor’s note:  The article is archived for its valuable content but does contain outdated information.]

“Settle matters quickly with your adversary who is taking you to court.
Do it while you are still with him on the way or he may hand you over to the judge,
and the judge may hand you over to the officer, and you may be thrown into prison.”  Matthew 5:25

 

In the 1982 Report on the State of the Judiciary, Chief Justice Warren Burger accurately observed: One reason our courts have become overburdened is that Americans are increasingly turning to the courts for relief from a range of personal distresses and anxieties.  Remedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal “entitlements.”  The courts have been expected to fill the void created by the decline of church, family and neighborhood unity.¹

In the seventeen years since Chief Justice Warren Burger penned this statement, our court dockets have become even more overcrowded.²   Litigants and potential litigants have turned to a variety of tools for extrajudicial resolution of their disputes, including mediation, arbitration, mediation/arbitration, early neutral evaluation, mini-trials, negotiation and summary jury trials.³  The rapid growth of alternative dispute resolution (ADR) is evidenced by a “breathtaking expansion of court-related programs, the rush of lawyers and non-lawyers alike to mediation training seminars, and the pledge of thousands of businesses and large law firms to consider ADR options.”⁴  Some authors have even argued that attorneys who fail to advise a client about the availability of ADR in a case could be breaching their ethical obligations to the client and committing legal malpractice.⁵

We have rapidly progressed from having few options available for extrajudicial resolution of disputes to multiple and occasionally confusing options.⁶  This Article describes Christian conciliation, a dispute resolution option which, in the opinion of the authors, is superior not only to litigation, but also to any of the other ADR methods commonly employed by members of the Bar.⁷  As discussed further below, the primary reason for the effectiveness of Christian conciliation is its focus on reconciling relationships and encouraging parties to address the root causes of their conflict.  For introductory purposes, “Christian conciliation” can be defined briefly as “a process for reconciling people and resolving disputes out of court in a biblical manner.”⁸  This definition and the specific parameters of Christian conciliation will be discussed further below.

I.  HISTORY OF CHRISTIAN CONCILIATION

Although there is a growing interest in Christian conciliation today, this ADR method employs principles of conflict resolution which have been around for thousands of years.9  Indeed, Christian conciliation is not even the “new kid on the block” with respect to the recent surge of interest in ADR.  As Chief Justice Burger penned his indictment against the church, family and neighborhood in 1982, attorneys involved in the Christian Legal Society (CLS) were already establishing Christian Conciliation Service (CCS) chapters around the nation. (Editor’s Note: CCS chapters would later become the Institute for Christian Conciliation at www.iccpeace.com)

A.    The National Picture

One of the early leaders in Christian conciliation was Laurence Eck, an attorney who was instrumental in establishing the first CCS in Albuquerque, New Mexico, in 1980.¹⁰  This pilot project, combined with the support for Christian conciliation generated by the 1982 CLS annual conference, led to the establishment of CCS chapters around the nation.  By 1987, when the Association of Christian Conciliation Services (ACCS) was formed, there were twenty-five CCS chapters around the nation.¹¹  Prior to the formation of the ACCS, each CCS chapter was formally affiliated with the CLS.¹²  Subsequently, the participating CCS chapters became members of the ACCS, along with the CLS.¹³  The CLS has remained an active supporter of Christian conciliation.¹⁴

At the 1989 ACCS conference, Ken Sande, Director of the CCS of Montana, was elected president of the ACCS and the ACCS national office was moved to Billings, Montana.¹⁵  In that same year, the ACCS began to develop model conciliation procedures and training materials, including the Rules of Procedure for Christian Conciliation and the Conciliator Training Program (CTP).¹⁶  Anne Bachle Fifer and Gary Friesen describe the transition from the ACCS to the present state of Christian conciliation as follows:

In the spring of 1991, Ken Sande published a thorough study of biblical conflict resolution called The Peacemaker: A Biblical Guide to Resolving Conflict (Baker Books).  It was well received immediately, because it was a unique discussion of the biblical response to conflict to which God calls Christians.  One result of the publication of The Peacemaker was increased national exposure for the conciliation education resources being developed in Montana.

By 1993 both the ACCS and the CCS of Montana (which had taken the name Institute for Christian Conciliation or ICC) had grown so much that it became impracticable for the three-person staff to simultaneously carry out the two missions and report to two boards of directors.  As a result, the ICC board asked Ken [Sande] to resign his position as president of the ACCS as soon as the ACCS could arrange to elect a new president and move its operations to a new office.

As the ACCS board considered the impact this change would have on the national conciliation ministry, it proposed that the two ministries be merged into a single organization, which would allow greater efficiencies in missions and operations.  ACCS membership strongly affirmed this proposal in the fall of 1993.  Since then, the ICC has continued to coordinate national efforts to promote Christian conciliation by developing professional quality conciliator training, maintaining a network of trained conciliators, referring and administering cases, and sponsoring an Annual Conciliation Conference.

Later in 1996, the ICC adopted a new ministry name, Peacemaker Ministries, and divided its activities into three divisions.  One division retained the name “Institute for Christian Conciliation.”  The other two divisions are Partners in Peacemaking and Young Peacemakers.¹⁷

Peacemaker Ministries, a 501(c)(3) nonprofit organization which is not affiliated with any particular denomination, remains at the forefront of Christian conciliation efforts nationally.  It offers not only conciliation services, but also training and education, and exists “to equip and assist Christians to respond to conflict biblically.”¹⁸

[Editor’s Note:  Peacemaker Ministries transferred the Institute for Christian Conciliation with its education, training, and certification programs to ICC Peace LLC in December 2016 but continues to offer training in peacemaking.]

Although there is an ever-growing network of Christian conciliators nationally,¹⁹ the number of CCS organizations has slowly dwindled, and even the first CCS in Albuquerque has folded.²⁰  The reasons for this dramatic shift in the landscape of Christian conciliation are instructive to those who are interested in participating in conciliation and perhaps in starting a local conciliation service in their area.  Ms. Fifer and Mr. Friesen list a number of factors contributing to the demise of these CCS chapters; including “lack of funding, inadequate promotional efforts, lack of support from Christian community, and inadequate training of conciliators . . . .”²¹  The lack of funding can be directly tied to the fact that many early conciliators “serve[d] without compensation except for out-of-pocket expenses.”²²

Although providing conciliation services for no fee is an admirable practice, it led to at least two problems: (1) severe funding problems within the CCS chapters; and (2) a perception among potential clients that the conciliation services offered were less than professional.  In other words, parties to some disputes, though generally supportive of Christian conciliation, believed that it was inadequate for resolving “serious” legal disputes.  In contrast, according to the current Guidelines, “[s]ome conciliators serve on a volunteer basis, while others charge an hourly fee ranging from $50 to $150 per hour.  In cases of financial hardship, most conciliators will work with the parties to develop a manageable payment plan.”²³  In a complex case, the hourly fee charged by a conciliator who has expertise in an area (e.g., oil & gas law) is often higher than the range of rates quoted in the Guidelines.  The ICC reports that “conciliation has been used to settle a wide variety of disputes, including contract, employment, family, personal injury, church, landlord/tenant, real estate, creditor, debtor, and professional conflicts.  The monetary claims in these cases have ranged from nothing to several million dollars.”²⁴

The ICC’s establishment of a rigorous and professional conciliator training program was intended to address the problem of inadequate training of conciliators, and the ICC has made tremendous headway in this area.  Taking the position that a professional fee will be charged in the ordinary conciliation case has improved both the funding and perception issues discussed above.  The transition from relatively independent and isolated CCS chapters to a more cohesive network of conciliators under the leadership of Peacemaker Ministries has resulted in many benefits, including: more effective promotional efforts, consistent training standards, better accountability, elimination of duplication in administrative functions, quality control in the development of conciliation resources, and increased networking among Christian organizations.  One possible negative consequence of this transition has been a diminished enthusiasm for local conciliation organizations.  This attitude stems from the perception that creating or sustaining an independent local conciliation organization (like a CCS chapter) would unnecessarily duplicate the activities being performed by Peacemaker Ministries and the ICC on a national level.  In any event, the number of attorneys, pastors, counselors and others practicing conciliation (either full-time or part-time) has continued to increase over the years.  It would seem, on balance, that this transition has been positive.

B.    Conciliation in Alabama

Long before the ICC or even the CLS came into existence, some Alabamians practiced conciliation.  In his recent history of the Alabama Baptists, Wayne Flint records one of the first conciliations to occur in Alabama:

[Pastor James H. DeVotie’s] hard-headedness alienated members of the [Montgomery First Baptist] congregation. . . .  At a called meeting in May 1835, members voted to terminate the youthful minister.  They also invited five ministers to help resolve their differences with DeVotie.  The only one of the five who responded was Alexander Travis, who made his way to Montgomery to try to unify the two hostile camps.  In order to maintain neutrality, he refused to stay in the homes of either group, registering instead at a hotel.  After each faction had its say separately, Travis called a general prayer meeting.  DeVotie at first refused to attend but later hid behind a door to listen.  Travis prayed a passionate prayer for contrition, repentance, and unity that so moved DeVotie that he walked down the aisle in tears to pray for a restoration of fellowship.²⁵

Although not trained or certified by the ICC, Travis may well have conducted Alabama’s first conciliation.  As discussed further below, Travis’ prayer contained at least two aspects essential to a conciliation—a call to repentance and a plea for unity among Christians.

Although Alabamians did not establish a CCS chapter in this century, there were CCS chapters in such places as Atlanta, Georgia; Jackson, Mississippi; and Central Florida during the 1980s.²⁶  Each of these chapters folded prior to 1990, although trained conciliators continue to practice in those areas.  According to the ICC, there are currently 108 people in the Southeast who have enrolled in or have completed the ICC’s Conciliator Training Program (CTP).²⁷  When compared to other areas of the country, the interest in and support of Christian conciliation is significantly higher in the Southeast and particularly in Alabama.  It was in fact this high level of interest that led Peacemaker Ministries to hold a number of seminars and training events in Alabama in the last few years.²⁸

[Editor’s Note:  Current information about the ICC Certification and training program is updated at www.iccpeace.com]

II.  WHAT IS CHRISTIAN CONCILIATION?

The term “conciliation” is defined by Merriam-Webster as “to bring into agreement”²⁹ and by Black’s as “[t]he adjustment and settlement of a dispute in a friendly, unantagonistic manner.”³⁰  The Institute for Christian Conciliation provides the following definition of “Christian Conciliation”:

Christian conciliation is a process for reconciling people and resolving disputes out of court in a biblical manner.  The process is conciliatory rather than adversarial in nature—that is, it encourages honest communication and reasonable cooperation rather than unnecessary contention and advocacy.

Christian conciliation may involve three steps.  Initially, one or both parties may receive individual counseling on how to resolve a dispute personally and privately using biblical principles.

If private efforts are unsuccessful, the parties may submit their dispute for mediation, a process in which one or more mediators meet with them to promote constructive dialogue and encourage a voluntary settlement of their differences.

Finally, if mediation is unsuccessful, the parties may proceed to arbitration, which means that one or more arbitrators will hear the case and render a legally binding decision.³¹

Except for the reference to “a biblical manner,” “biblical principles” and “reconciling people,” the above definition does not differ significantly from common descriptions of ADR.  What then distinguishes Christian conciliation from “ordinary” ADR?³²

A.    The Purpose and Goals of Christian Conciliation

According to the Rules of Procedure for Christian Conciliation, the purpose of Christian conciliation is to glorify God by helping people to resolve disputes in a conciliatory rather than an adversarial manner.  In addition to facilitating the resolution of substantive issues, Christian conciliation seeks to reconcile those who have been alienated by conflict and to help them learn how to change their attitudes and behavior to avoid similar conflicts in the future.³³

Identifying and addressing the root causes of a conflict not only prevents similar conflicts in the future, but also allows the parties to avoid adopting a superficial solution to a dispute.  In general, Christian conciliation is more values-oriented than other types of mediation,³⁴ and involves evaluating the parties’ attitudes and behavior from a moral perspective.³⁵  In light of the fact that this process is called Christian conciliation, it is not surprising to see that the ICC and Christian conciliators adopt the moral standard contained in the Bible.

As stated by the Guidelines, “Christian conciliation promotes traditional Judeo-Christian values and principles that are an essential part of our common law and promote healthy relationships and the proper functioning of society.”³⁶  Parties to a conciliation are expected, for example, to be honest, do what is just and merciful, keep their word, admit their wrongs, and make restitution for any damage they have caused.

In other words, if you use Christian conciliation, you will be encouraged to follow the rule that God has given to govern relations between all people: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.”³⁷

Conciliators therefore will “draw the parties’ attention to attitudes, motives, or actions that appear to be inconsistent with those [moral] standards . . . [and] anyone who claims to be a follower of Christ will be encouraged to obey his commands and behave in a manner that will honor him.”³⁸  The primary and most important distinction between “ordinary” ADR and Christian conciliation is the preeminence of the Bible as a standard of conduct for not only the participants, but also the conciliators.³⁹  It is in fact this focus on both the personal and substantive issues which often results in dramatic solutions of “impossible” disputes.

B.    The Conciliation Process

Although the ICC provides conciliation services and administers cases for many of its trained conciliators, it is not necessary to go through the ICC to submit a dispute for conciliation.  Conciliation services can be provided by a volunteer, a local church, a professional mediator, an established conciliation ministry, such as the ICC or a Certified Christian Conciliator™.⁴⁰  Of course, working through the ICC will at least provide access to that organization’s network of trained conciliators.  A party may initiate conciliation simply by informing the Administrator (generally the ICC) “of the nature of the dispute, the names of the other parties involved, and the remedy sought.”⁴¹ The ICC normally nominates one or more conciliators for the parties’ approval.

With respect to a mediation, mediation/arbitration, or arbitration, the conciliation process is very similar to the ordinary ADR process.  For example, a mediation conducted under ICC rules will generally include an introduction, opening statements, presentation of the case by each party, caucuses, discussion of possible solutions, and (in many cases) agreement on a solution.⁴²  However, the Christian conciliation process also includes an opening and closing prayer, the application of relevant biblical principles, and “a discussion, sometimes in private at first, of each party’s responsibility for the dispute.”⁴³ As discussed below, there are also significant differences between the two approaches in the areas of caucusing, confidentiality and the role of the church.

If the parties have agreed to a mediation/arbitration, then issues not resolved in the mediation are submitted to arbitration.  Because it is never certain that the dispute will settle in mediation, it is necessary for the parties to define clearly the issues in dispute prior to beginning the mediation/arbitration.  If the matter proceeds from mediation to arbitration, then “an entirely new panel of arbitrators shall be appointed” unless “by unanimous written agreement the parties… authorize the mediators to act as arbitrators.”⁴⁴  These rules do not appear to differ significantly from the ordinary mediation/arbitration practices among the members of the Bar.  With respect to arbitration, a significant distinction between ordinary ADR and conciliation is the authority of the conciliator/arbitrator to “grant any remedy or relief that they deem scriptural, just and equitable, and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract.”⁴⁵

C.    Treatment of Christian Conciliation by the Courts

In general, the judicial system is increasingly supportive of ADR, and many judges have welcomed conciliation as a valuable component of the overall ADR mix.  Because Christian conciliation is similar in many respects to ordinary ADR, statutory and case law affecting ADR would likely have a similar effect on conciliation.  For example, recent case law in Alabama on the enforceability of arbitration agreements (discussed below) would apply to any conciliation agreement which incorporates arbitration provisions.⁴⁶  However, there are very few opinions which discuss Christian conciliation specifically.  The most common reference to conciliation in judicial opinions is a simple observation that it is available as a means of resolving disputes.⁴⁷  This is true also of a number of law review articles cataloguing the various ADR options.⁴⁸

One recent case which specifically addressed Christian conciliation was Encore Productions, Inc. v. PromiseKeepers,⁴⁹ which related to the enforceability of a Christian conciliation clause.  The reasoning and holding of this case are discussed at length below.  However, it is worth noting here that the court’s general treatment of Christian conciliation as a means of alternative dispute resolution was very favorable.  In holding that the conciliation clause at issue was enforceable,⁵⁰ the court noted that “[d]istrict courts have the power to enforce secular contract rights, despite the fact that one of the contracting parties may base their rights on religious affiliations.”⁵¹  It also stated that “[a]lthough it may not be proper for a district court to refer civil issues to a religious tribunal in the first instance, if the parties agree to do so, it is proper for a district court to enforce their contract.”⁵²  Other relevant aspects of this decision are discussed below.  However, it is encouraging to see that a standard conciliation clause, the Rules of Procedure for Christian Conciliation, and the general concept of conciliation passed a searching review by at least one federal district court with flying colors.

Another significant case with respect to conciliation is Miller v. Miller.⁵³  In Miller, the parties to a divorce had entered into a marriage settlement agreement containing a mediation/arbitration clause requiring “the CCS [to] appoint a group of arbitrators/mediators . . . who will mediate and, if necessary, arbitrate the outstanding issues relating to the applicable actions [including] . . . custody . . . .”⁵⁴  When mediation failed to resolve the custody issue, an arbitration panel decided the issue in favor of the mother.⁵⁵  The mother sought to enforce the arbitration order when the father refused to relinquish custody, but the trial court declined to do so.⁵⁶  Although the appeals court noted that arbitration provisions regarding child custody are not void as against public policy, it held that such an arbitration decision is not binding on the court if it is challenged by one of the parties as not being in the best interest of the child.⁵⁷

Similarly, in C.R. and S.R. v. E.__,⁵⁸ the court considered an arbitration award issued by a conciliation panel in a case administered by the CCS of Central Florida, Inc.  In this case, the parents had alleged that a Catholic priest had molested their minor daughter.  After an unsuccessful mediation, the parties submitted the case to arbitration and the parents were awarded $250,000 in damages.⁵⁹  Although the arbitration award apparently did not contain a confidentiality provision, the CCS rules utilized in the arbitration required that:

All statements made during the conciliation process will be of a confidential nature and will not be made known to persons not involved in the process.  When deemed appropriate by CCS and/or the conciliators, the case may be fully discussed with the appropriate church authorities of parties professing to be Christians . . . .⁶⁰

After issuance of the arbitration award, the parents informed church counsel that they did not intend to be bound by any confidentiality agreements, whereupon the priest sought injunctive relief in state trial court.⁶¹  The appellate court in this case overturned a temporary injunction issued in the priest’s favor, holding that “[t]he requirement of confidentiality herein at issue is void as a matter of public policy.”⁶²

In both C.R. & S.R. and Miller, the court questioned arbitration awards issued in conciliation cases.  However, neither opinion treated conciliation per se negatively.  The reasoning in Miller would clearly apply to any arbitration award addressing child custody issues in Pennsylvania, whether that award was the product of a conciliation process or otherwise.  In S.R. & C.R. the court failed to consider the possibility that the child abuse allegations were not even covered by the CCS rule at issue.  Under that rule, only “statements made during the conciliation process” were to be considered confidential, not the actual conduct of the priest.  Under the Florida statute, the allegations themselves were sufficient to trigger the reporting obligation, and those allegations preceded the conciliation process entirely.  In any event, it is clear that the court would have treated confidentiality provisions in this type of case the same, regardless of whether it was a Christian conciliation arbitration or any other type of arbitration.  Also, note that the ICC rule on confidentiality differs significantly from the CCS rule discussed in C.R. & S.R.63

 

Christian Conciliation: An Alternative to Ordinary ADR – Part 2
by Glenn G. Waddell and Judith M. Keegan

III.  SIGNIFICANT ISSUES RELATING TO CHRISTIAN CONCILIATION

Although the concept and practice of Christian conciliation raise a number of issues, this article will focus on two of the most significant issues.  They are the enforceability of conciliation clauses and confidentiality.  Other significant issues not addressed by this article include participation by corporate entities in conciliation, the relationship of church discipline to conciliation, insurance issues related to conciliation, the authority of conciliators to provide injunctive relief to parties, and non-Christians as parties to a conciliation.

A.    Conciliation Clauses and Enforceability

One of the best ways to make sure that any possible future conflict between parties is dealt with in Christian conciliation, rather than in court, is to include an enforceable conciliation clause in every contract.  This Christian version of an ADR clause is very similar to ordinary ADR clauses, except that the conciliation clause states that the dispute resolution process is to be conducted in accordance with rules which are biblically centered, rather than those from a secular organization like the American Arbitration Association.  These pre-dispute clauses, which let parties know what steps will be followed if a contractual dispute arises, may be written in various ways, depending on party preference.

In its Guidelines for Christian Conciliation, the ICC provides the following sample conciliation clause:

The parties to this agreement are Christians and believe that the Bible commands them to make every effort to live at peace and resolve disputes with each other in private or within the Christian church (see Matthew 18:15-20; I Corinthians 6:1-8).  Therefore, the parties agree that any claim or dispute arising from or related to this agreement, including those based on statute, 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 Institute for Christian Conciliation.  Judgment upon an arbitration award 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. ⁶⁴

Of course, parties will want to draft their clause to fit their particular circumstances and in accordance with appropriate state and Federal statutes and case law to ensure enforceability.

Generally, if parties have a valid written agreement, their rights and duties are governed by that agreement.65  If, when a dispute arises, a party refuses to follow the ADR procedures set out in the agreement, and instead files an action in court, the court must decide whether to enforce those ADR procedures.  Most court decisions on ADR enforcement deal with pre-dispute agreements to arbitrate where there is no requirement to mediate or use another form of non-binding ADR prior to arbitration.  However, there are a few exceptions.66  Additionally, all but two of these decisions involve ordinary, as opposed to Christian, arbitration under the conciliation model.67  Because of the similarities between conciliation and ordinary ADR and the relatively few cases on conciliation, it is assumed that conciliation clauses are enforceable to the same extent as and under the same limitations imposed upon ordinary ADR clauses.  This article will briefly describe Encore Productions, Inc. v. PromiseKeepers and the state of the law with respect to enforcement of contractual ADR clauses generally.

The procedural combination of mediation followed by binding arbitration, known as “Med/Arb,”⁶⁸ (as used in the ICC sample clause) has become popular nationally in recent years, particularly in business contracts.  As an example, the CPR Institute for Dispute Resolution⁶⁹ publishes sample pre-dispute clauses which may be adopted or edited by parties entering into a contract.  Their sample clauses use multi step ADR procedures, including an initial negotiation phase, a mediation phase and, if necessary, a binding arbitration phase.⁷⁰  Negotiation will work part of the time.  When negotiation fails, a mediator is often able to help parties develop creative options.  This in turn increases the chance of arriving at a mutually acceptable resolution, rather than a decision imposed later by an arbitrator.  With such multi step clauses in place, “commercial cases are settled 80% to 90% of the time in mediation,”⁷¹ and never reach binding arbitration.

Parties who want to use the mediation process to settle disputes out of court are wise to do so in combination with arbitration, not just because it gives the parties greater control over the outcome, but also because there are no cases that “squarely address the issue of whether a court will order parties to engage in non-binding ADR, such as mediation, as part of enforcing a pre-dispute ADR clause.”⁷²  While having an arbitration provision almost always assures parties they will end up in arbitration if non-binding ADR fails, a greater enforceability question arises with respect to the non-binding ADR provision.  In the past, “courts have been reluctant to enforce these agreements because they:  (1) usually lack statutory backing; (2) take away some of the courts power; (3) can be remedied by damages; and (4) do not ensure settlement of the case.”⁷³  However, in the few recent cases where a combination of non-binding ADR and arbitration is discussed, all courts but one have agreed that participating in the non-binding process was a condition precedent to other remedies.  Of those non-binding processes upheld by the courts, one was an advisory opinion process and the party was ordered to submit data for the opinion;⁷⁴ one was an appeal to a policy board and the party had to undertake the appeal before pursuing any other remedy;⁷⁵ and another was an agreement to mediate followed by advisory fact-finding.⁷⁶

Additionally, lack of statutory backing is no longer quite the issue it once was.  Under current rules, federal courts are permitted to mandate mediation and other non-binding ADR when administering their dockets, even when the parties do not agree,⁷⁷ and many states have similar rules for their courts.  In Alabama, for example, a pre-dispute agreement to mediate would most likely be enforceable, barring any other problems with the agreement.  There are several reasons for this conclusion.  First, there is no Alabama statute which would make a pre-dispute agreement to mediate unenforceable (unlike a pre-dispute agreement to arbitrate).  Second, there is no public policy against mediation, because it is a non-binding, voluntary process and parties can still invoke their right to a jury trial if the matter is not settled in mediation.  Third, as of May 17, 1996, Alabama has a statute requiring mediation in the following circumstances:

(1) At any time where all parties agree. (2) Upon motion by any party.  The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed. (3) In the event no party requests mediation, the trial court may, on its own motion, order mediation . . . . ⁷⁸

While the statute applies to mediation after litigation has been filed, it demonstrates the support accorded mediation in Alabama.  The courts should grant the same favorable treatment where the parties have agreed prospectively by contract to use mediation.

An assertion by the Maryland court in Annapolis reveals what is probably the current enlightened outlook on non-binding ADR.  The court stated that a “written agreement to submit an existing or future dispute to a form of ADR that is not otherwise against public policy – such as mediation and neutral fact-finding – will be enforced at least to the same extent that it would be enforced if the chosen method were arbitration.”⁷⁹  Thus, in view of the cases, court rules, and current public policy favoring ADR use, courts most likely will continue the trend of enforcing pre-dispute agreements that are non-arbitral and non-binding, whether standing alone or more often in combination with arbitration, unless parties successfully challenge them.  The analysis courts should generally use would consider the same issues which arise in the enforcement of an arbitration agreement:  (1) whether the parties agreed to use the particular ADR procedure at issue; (2) whether there are any contract defenses which would prohibit enforcement of the ADR provision; (3) whether any specific statute or law governs the rights and procedures of the parties; (4) whether the agreement to use ADR applies to this particular dispute; and (5) whether a party waived their right to ADR.  These issues are addressed below, but none of the cases deal with a non-binding ADR process standing alone.

1.   Encore Productions, Inc. v. PromiseKeepers

As discussed briefly above, the only case squarely addressing the enforceability of conciliation clauses is Encore Productions, Inc. v. PromiseKeepers.⁸⁰   In this case, Encore Productions and PromiseKeepers had included the “short version” of the standard ICC conciliation clause in their contract,⁸¹ requiring mediation and, if necessary, binding arbitration of “[a]ny claim or dispute arising from or related to [their] Agreement.”⁸²  When Encore Productions filed suit for breach of contract and related claims in federal district court, PromiseKeepers filed a motion to dismiss for lack of subject matter jurisdiction based on the application of the conciliation clause.  In a very well-reasoned opinion, the district court granted PromiseKeeper’s motion to dismiss, holding that:  (1) under federal common law on arbitrability, an arbitration clause survives the termination of a contract unless there is clear evidence to the contrary; (2) the broad “arising from or related to” language in the conciliation clause covered all of Encore Production’s claims against PromiseKeepers; (3) the parties’ contractual agreement that Colorado law governs interpretation of the contract means only that the arbitrator, consistent with ICC Rule 42,⁸³ must fashion a remedy consistent with Colorado law; (4) the arbitration agreement is enforceable as a secular contract right, even though it may involve a “religious tribunal”; and (5) compelling Christian conciliation will not violate Encore’s rights to free exercise of religion under the First Amendment.  The court also held that a subcontractor who was not a party to the initial agreement was not subject to the conciliation clause and was not subject to personal jurisdiction in Colorado.⁸⁴

PromiseKeepers is a significant case for at least the following reasons:  (1) it involves Christian conciliation and, specifically, the conciliation clause language recommended by the ICC; (2) the court squarely addressed Encore’s objections to the religious nature of conciliation; and (3) the opinion compiles a fairly exhaustive list of important case law and principles relevant to arbitration.  The only aspect of the decision which is potentially troublesome is the interplay between the Rules of Procedure for Christian Conciliation and Colorado law.  Although ICC Rule 4 states that “the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process,” ICC Rule 40 requires that the arbitrators must grant relief “that is in the scope of the agreement of the parties.”⁸⁵  Because the agreement in this case contained a Colorado choice of law provision, the court held that “the arbitrator must fashion a result that is consistent with Colorado law.”⁸⁶  It is conceivable that a result which is consistent with Colorado law could be inconsistent with Scripture.  For example, Colorado law may provide for a contractual defense which is contrary to the Bible’s admonition to keep your word.  One possible avenue around this issue is to craft a choice of law clause which acknowledges the parties’ agreement to use conciliation.⁸⁷

2.   The Parties’ Agreement to Use ADR

The Alabama Supreme Court has not addressed the question of whether parties have agreed to mediate, but in addressing the question of whether parties have agreed to arbitrate, the court has noted that “the first task of this Court, when reviewing an arbitration provision, is to determine whether the parties agreed to arbitrate the dispute at hand.”⁸⁸  “Both Federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute he did not agree to submit.”⁸⁹  In a recent Alabama employment case, the employer tried to enforce a binding arbitration clause in its standard employee handbook.  While the employee had signed an acknowledgment form stating that she had received the handbook, that same acknowledgment form stated that “no written statement or agreement in this handbook is binding.”  The court decided that the latter statement vitiated the operative effect of the arbitration provision contained in the handbook, and that there was no agreement to arbitrate.⁹⁰

A second employee handbook case had a different result.  In Ex parte McNaughton,⁹¹ the plaintiff maintained that she did not agree to arbitration because the arbitration clause in the employee handbook was not part of a legally binding contract.  However, the acknowledgment signed by the plaintiff said that except for the provisions of the Employment Arbitration Policy the handbook did not establish a contract.  According to the Court “when one party proposes a standard contract to another party, the parties may . . . agree to be bound by certain of the clauses  . . . and not to be bound by others.”⁹²  The acknowledgment plaintiff signed indicated that the parties agreed to be bound by one handbook provision, the arbitration provision, but not by the others, and the Court enforced the agreement to arbitrate.⁹³

Another topic for consideration is whether non-signatories can be compelled to arbitrate.  For example, in one recent Alabama case, a husband and wife, purchased an automobile from the defendant.  Both signed the Retail Installment Sales Contract, but only the husband signed the Retail Buyer’s Order where the arbitration clause was located.  The court found that the wife could not be compelled to arbitrate, regardless of the fact that the automobile was owned by both.  The key fact was that the wife had not signed the document and therefore never agreed to arbitrate.⁹⁴  In another case, however, the Alabama Supreme Court determined that the plaintiff, who was seeking benefits under an uninsured motorist provision in an automobile policy between the insurance carrier and Jack Ingram Motors, could be compelled to arbitrate his claims even though he was a non-signatory.  Because the plaintiff was pursuing his lawsuit as a third-party beneficiary of the insurance contract between the defendant and Jack Ingram Motors, he was bound to all provisions of that contract, including the arbitration agreement.⁹⁵

In another case which addresses the enforceability of a conciliation clause, the Woodlands Christian Academy in Texas and its former principal, Lynn Logan, had agreed to biblically based mediation followed by binding arbitration as part of an employment agreement.  The Academy’s president had signed the agreement in his capacity as President.  When the president was sued in his individual capacity,  the Texas Court of Appeals refused to find that the president was subject to the Med/Arb clause, reasoning that he had signed the agreement as president of the Academy, and not in his individual capacity.⁹⁶

In summary, to ensure enforceability, drafters of a contract containing a Christian conciliation clause should make sure that it is signed by every person against whom it might be enforced.  This is true for all conciliation clauses, but especially where arbitration is contemplated by the parties.  Additionally, the clause should not be located in a document which, by its own terms, is not enforceable.  Particularly where the parties are Christians, they may well agree (and often do agree) to abide by the terms of a conciliation clause even where its enforceability is suspect.  This is consistent with the scriptural admonition to keep your word.⁹⁷

3.  Contractual Defenses to an ADR Clause

General contract defenses provide creative ways to invalidate a Christian conciliation clause or any ADR clause.  In general, a contract, including an agreement to mediate or arbitrate, otherwise valid on its face, may not be enforceable due to reasons external to the contract, and this conclusion is not altered by the existence of federal law on the subject of arbitration.  In an opinion addressing the enforceability of the Federal Arbitration Act (FAA), the U.S. Supreme Court stated:

In any event, [FAA] Section 2 gives states a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision.  States may regulate contracts including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.”  9 U.S.C. Section 2.⁹⁸

If the ADR clause is unconscionable, the court will not send the parties to arbitration,⁹⁹ nor will it send them if the arbitration agreement itself was induced by fraud (but if the entire agreement is procured by fraud the dispute will go to the arbitrator).¹⁰⁰  Additionally, incapacity with regard to ability to consent to the clause may be grounds for avoidance of arbitration,¹⁰¹ and so may lack of consideration for the arbitration clause.¹⁰²  For example, an Ohio court recently ruled that an arbitration provision in a service contract between a homeowner and an exterminator was unconscionable and thus unenforceable because the arbitration filing fee cost that the homeowners had to pay under the American Arbitration Association administration rules was more than the contract amount that the homeowner had agreed to pay for extermination services.¹⁰³  The court found that pursuant to both Section 2 of the Federal Arbitration Act and the Ohio Act, the same grounds exist for invalidating an arbitration agreement as for any contract.

In a recent Alabama enforcement case, the Alabama Supreme Court said that a court should refuse to enforce an arbitration agreement where the record supports a determination of unconscionability.¹⁰⁴  Plaintiff presented as evidence to show unconscionability an affidavit in which she testified that she and her brother were elderly, did not finish high school, had poor eye sight, had difficulty reading, and could not read small print.  The Court explained that it was looking for “additional matters that could be germane to a determination of unconscionability.”¹⁰⁵  Then the Court proceeded to list those things which might make this arbitration clause unconscionable, and thus unenforceable: a refusal of assistance, after plaintiff notified someone she could not see or understand; plaintiff’s inability to obtain the same product from the seller or another source without having to sign an arbitration clause; the oppressiveness or unfairness of the mechanism of arbitration; or the “fairness of a discount or other quid pro quo in exchange for her accepting an arbitration agreement.”¹⁰⁶  The outcome rested on the rule that “the party asserting unconscionability has the burden of proving unconscionability,”¹⁰⁷ and plaintiff had not offered the right proof here.

4.  Applicable Law

One of the key issues in any enforcement analysis is determining what law governs the rights and procedures of the parties. “Even though arbitration is basically a matter of contract, arbitration and arbitration agreements may be governed by either state or federal law.”¹⁰⁸  Often, state law and federal law have treated arbitration differently, and this has been especially true in Alabama.  Several articles describe this dichotomy more closely,¹⁰⁹ and the following summary is only intended as a brief overview.

In determining what law applies with respect to an arbitration agreement, the courts look to see if there is interstate commerce—a question which determines whether the FAA applies.  Section 2 of the FAA provides:  “A written provision in any . . . contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.”¹¹¹ the Alabama Code and Alabama’s public policy expressly prohibit specific enforcement of  pre-dispute agreements to arbitrate.¹¹²  In the past, determining whether the FAA or Alabama law applied was critical to defeating an agreement to arbitrate.

More recently, however, a series of U.S. Supreme Court cases all but removed state law from the picture, and the final blow came in a case that went up from the Alabama Supreme Court: Allied-Bruce Terminix.¹¹³  The Alabama Supreme Court invalidated an arbitration clause in an extermination contract, holding that the FAA did not apply because the parties had not contemplated interstate commerce when they entered into the contract.¹¹⁴  The U.S. Supreme Court disagreed and enforced the arbitration agreement clause.¹¹⁵  According to a recent article, “Terminix conclusively rejects any notion that the FAA does not apply in state courts.  Furthermore, it conclusively rejects the substantial contemplation test as a test for determining whether the FAA or state law applies.  Finally, it sets forth the ‘;commerce in fact’ test for determining FAA applicability.”¹¹⁶

The U.S. Supreme Court has repeatedly stated that Congress promulgated the FAA to avoid the common law rule that agreements to arbitrate future controversies are void as against public policy; that the FAA establishes a strong federal policy favoring arbitration;¹¹⁷ and that the basic purpose of the FAA “is to overcome courts’ refusals to enforce agreements to arbitrate.”¹¹⁸  Thus the FAA preempts state law any time the contract in dispute involves interstate commerce or a maritime transaction.  In addition, the U.S. Supreme Court has held that the FAA creates a body of federal substantive law that state courts cannot refuse to apply.¹¹⁹  Moreover, the Court reads the phrase “a contract evidencing a transaction involving commerce” in the FAA broadly, extending the Act’s reach to the limits of Congress’s Commerce Clause power.¹²⁰  In fact, the Court’s decisions construing the commerce power indicate that it is almost limitless.

After Terminix, it is clear that all commercial arbitration agreements (and nearly all arbitration agreement of any kind) affect interstate commerce, are within the federal commerce power, and are thus governed by the FAA.  The result is that virtually all arbitration agreements are enforceable as a matter of federal law, and all courts, including Alabama courts, are obligated to enforce them pursuant to the FAA.¹²¹

In Alabama, drafters of ADR clauses, including Christian conciliation clauses, should consider stating in the clause that the transaction involves interstate commerce and that the FAA applies.  Of course, parties must be prepared to introduce evidence of interstate commerce.  In addition, the drafter may want to include language addressing the interplay of state law and the Rules of Procedure for Christian Conciliation, an issue raised by the court in PromiseKeepers.¹²²

5.  Application of an ADR Clause to a Particular Dispute

Another important question is whether the agreement to use ADR applies to this particular dispute.  A practitioner who negotiates a Christian conciliation agreement for binding arbitration has gained little for his or her client if the dispute that later arises is beyond the scope of the arbitration agreement, and thus never descends upon the arbitration forum.

For example, in Coastal Ford v. Kidder,¹²³ the buyer of a used pickup truck brought a fraud action in court against the seller, alleging that the seller misrepresented the mileage on the truck, and contesting the validity of the  arbitration clause in the sales contract.  After analysis, the Alabama Supreme Court held that the arbitration provision was enforceable under the FAA, and then considered whether the provision applied to Kidder’s fraud claim. The court considered whether the language or scope of the arbitration clause was broad enough to encompass the claim sought to be arbitrated.  Whether an arbitration clause applies to a claim “is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.”¹²⁴  The Court held that the language of the clause was not ambiguous, and was broad enough to encompass the fraud claim at issue.¹²⁵

Similarly, in Merrill Lynch v. Kirton, a customer agreement with a securities dealer included an arbitration agreement stating that “all controversies which may arise between us… whether entered into prior to, on, or subsequent to the date hereof, shall be determined by arbitration.”¹²⁶  The Court found that this clause was sufficiently broad to include “any and all controversies between them regardless of the kind of controversy or the date on which the controversy occurred.”¹²⁷  The parties’ dispute was over a transaction which had occurred prior to the signing of the agreement to arbitrate.  Finally, in Ex parte Gates, the court noted with approval a broadly-worded arbitration clause covering “all disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract, or the validity of this arbitration clause or the entire contract shall be resolved by binding arbitration.”¹²⁸

Clearly, drafters should take note that the broader the wording of the ADR clause, the greater chance that a particular dispute will fit within it and qualify to be sent to mediation or arbitration.

6.  Waiver

One last way that a party can try to defeat a pre-dispute ADR clause is to accuse the other party of waiving the right to use this procedure.

In an Alabama case, Morrison Restaurants, Inc. v. The Homestead Village of Fairhope, Ltd.,¹²⁹ the main issue was whether a party to a food service contract had waived its right to assert any rights it might have under a Med/Arb clause in the contract.  The trial court found no waiver, and referred the dispute to mediation with non-binding arbitration to follow if the mediation proved unsuccessful.  On appeal, the Alabama Supreme Court found differently.  Morrison had provided services for over a year and Homestead had failed to pay.  Morrison sued Homestead for payment, to which Homestead answered with a general denial.  Morrison subsequently filed a motion for summary judgment; Homestead responded with its documents.  The court granted summary judgment for Morrison.  Following the entry on judgment, but before a hearing on the damages, Homestead (having new counsel) filed a motion for mediation/arbitration.

The Court cited the general two-pronged rule for waiver: “It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration.”¹³⁰  It went on to say that the rule for determining waiver is not rigid, but is based on the particular facts of each case.  Applying the rule to the facts, the court concluded that Homestead had waived its right to mediation or arbitration.  Homestead had failed to seek Med/Arb in its answer or in its response to the motion for summary judgment.  Eight months passed before Homestead asserted its right, and then only after it had suffered an adverse ruling as to liability.  Homestead’s actions indicated an intent to avail itself of the litigation process and not the ADR provisions.  Referring the case to mediation or arbitration would prejudice Morrison since it had already won on the issue of liability.

Another recent case is very important to waiver in Alabama, because in Ex parte Hood,¹³¹ the Supreme Court found that a party could substantially invoke the judicial process prior to filing an answer and thereby waive its right to arbitration.  Before answering the complaint, defendant Golden removed the case from state to federal court.  At the federal court, Golden participated in formulating a discovery and scheduling plan to govern the litigation at the district court.  Two months later it informed Hood’s counsel that it intended to seek enforcement of the arbitration agreement instead of going to trial, and moved the federal court to stay the case pending arbitration.  Before ruling on Golden’s motion, the federal court granted Hood’s motion to remand to state court.  The state circuit judge held that the arbitration agreement was enforceable and that Golden had not waived its right to arbitration.  However, the Alabama Supreme Court found that Golden had failed to indicate that it would seek arbitration when removing the case to federal court, and that removal accompanied by an immediate motion to stay was the correct procedure so as to avoid waiver.  Without elaboration, the Court held that Golden’s failure had prejudiced Hood.

In order to preserve the right to enforce a Christian conciliation Med/Arb clause, the safest course of action is to file a motion for mediation and arbitration before or at the time of the answer or any other pleading which would be perceived as “invoking the litigation process.”  If timing dictates that an answer be filed before obtaining a ruling on the motion for mediation and arbitration, then the defendant should state in the answer that it is expressly retaining the right to pursue ADR pursuant to the contractual agreement.

B.    Confidentiality

As discussed briefly above,¹³² the ICC Rules contain fairly detailed provisions regarding confidentiality.  ICC Rule 16A states:

Because of its biblical nature, Christian conciliation encourages parties to openly and candidly admit their offenses in a particular dispute.  Thus, conciliation requires an environment where parties may speak freely, without fear that their words may be used against them in a subsequent legal proceeding.  Moreover, because conciliation is expressly designed to keep people out of court, conciliators . . . would not do so if they believed that any party might later try to force them to testify in any legal proceeding regarding a conciliation case.  Therefore, all communications that take place during the conciliation process shall be treated as settlement negotiations and shall be strictly confidential and inadmissible for any purpose in a court of law, except as provided in this Rule.¹³³

Unless the parties agree otherwise and subject to Rule 17 (discussed below), settlement agreements reached by the parties reached in mediation are confidential.  Further, the Administrator¹³⁴ may divulge “appropriate and necessary information” in six specific circumstances:  (1) during consultations with staff members or outside experts regarding a case; (2) “when compelled by statute or by a court of law;” (3) during the contest of an arbitration decision; (4) in an action against the Administrator resulting from the Administrator’s participation in a case; (5) when the Administrator deems it necessary to discuss a case with a party’s church leaders; and (6) when the Administrator must contact civil authorities to prevent another person from being harmed.¹³⁵

Of these six exceptions, only the fifth relates specifically to the fact that the parties are participating in a Christian process.  The first exception covers the situation where the conciliator and/or case administrator must necessarily divulge limited information to staff members (e.g., a secretary) in order to handle a case efficiently.  In consulting an outside expert regarding a case, the conciliator, consistent with the general confidentiality rules, should disclose only the minimum information necessary to obtain intelligent input on the case.  The second and sixth exceptions address situations like the one in C.R. & S.R., discussed above.¹³⁶  The third and fourth exception both address situations where a conciliator must divulge case information to defend his or her actions in a case – whether in issuing an arbitration award or in simply conducting the conciliation.

The fifth exception relates to ICC Rule 17.  According to this rule, conciliators may discuss a case with a party’s church leaders “[i]f a party who professes to be a Christian is unwilling to cooperate with the conciliation process or refuses to abide by an agreement . . . .”¹³⁷  The purpose of this communication with church leaders is to request that the church leaders become actively involved in resolving the dispute.  The reason for the exception is Jesus’ command in Matthew 18:15-17 that parties “tell it to the church” when a Christian confronted with his behavior “refuses to listen.”¹³⁸  ICC Rule 17 recognizes that a conciliator must be free to speak to a party’s church about a matter where such an action is required by the circumstances and Matthew 18.  The parties to a conciliation are provided with a copy of the ICC Rules and are made aware of these exceptions from the ordinary confidentiality rules.

As discussed above, both ordinary mediations and conciliations use a caucus, or a meeting between the mediator and one party in the dispute.  However, the caucus in conciliation differs from the caucus process in ordinary mediation in at least two respects: (1) caucus discussions will, as much as possible, “focus on the party who is present [in the caucus] rather than on the absent party”; and (2) conciliators are allowed to “discuss with the other parties any information obtained during . . . a caucus.”¹³⁹  The caucus is for the consideration of possible solutions, as well as discussion of a party’s attitudes, conduct and responsibilities.  The primary reason for the caucus limitations contained ICC Rule 21 is the biblical requirement that parties in a dispute speak directly with one another about the dispute and not to third parties in the absence of the other party.¹⁴⁰  These limitations not only force the parties to focus on their own conduct in caucus, but also promote the type of face-to-face discussions between the parties which often result in long-term solutions to disputes.

IV.  Conclusion

While Christian conciliation may not be an acceptable dispute resolution option for everyone and every case, it is well suited for parties who profess to be Christians and desire to handle their conflict in accordance with biblical principles.  Given the high percentage of professing Christians in this nation, and particularly in the Southeast,¹⁴¹ the conciliation model is well suited to serve the dispute resolution needs of our culture.  Furthermore, as trained conciliators and others teach the basic principles of biblical conflict resolution in their churches, families and communities, the benefits expand beyond the sphere of litigation and into other arenas.  As people apply these principles to their lives, we are convinced that the general benefits to society at large far outweigh even the beneficial effect that the availability of Christian conciliation will have on the court system.

Christian Conciliation: An Alternative to Ordinary ADR – Part 3

Endnotes

* Member of the Alabama State Bar.  J.D. 1990, The University of Alabama School of Law.  Mr. Waddell, formerly Southeast Regional Director for Peacemaker Ministries, is a partner with Wallace, Jordan, Ratliff & Brandt, L.L.C. and an adjunct professor at the Cumberland School of Law.  The authors acknowledge the invaluable assistance provided by David R. Mellon, a recent graduate of the Cumberland School of Law.** Member of the Maryland State Bar.  J.D. 1986, Catholic University, Columbus School of Law.  Ms. Keegan is Director of the Alabama Center for Dispute Resolution, established by the Alabama Supreme Court and housed at the Alabama State Bar.

1 Chief Justice Warren Burger, Annual Report on the State of Judiciary, A.B.A. J. 68 (March 1982).

2 See, e.g., Alabama United Judicial System Annual Report for 1997, at 24 (reporting that “Alabama circuit courts again reported record case filings in FY 1997”).  1998 statistics also report an increase in filings from 1997.

3 For a discussion of these and other alternative dispute resolution tools, see Alternative Dispute Resolution Procedures in Alabama with Mediation Model, at 9-12 (2d ed. 1998) (Alabama State Bar Committee on Alternative Methods of Dispute Resolution).

4 Richard C. Reuben, The Lawyer Turns Peacemaker, 82 A.B.A. J. 55 (August 1996).

5 See Monica Warmbrod, Could an Attorney Face Disciplinary Actions or Even Legal Malpractice Liability for Failure to Inform Clients of Alternative Dispute Resolution?, 27 Cumb. L. Rev. 791 (1996-1997); Stuart M. Widman,  Attorneys’ Ethical Duties to Know and Advise Clients About Alternative Dispute Resolution, The Professional Lawyer, ABA Center for Professional Responsibility, 1993 Symposium, at 18.

6 For a discussion of the development of ADR in Alabama, see the Alabama State Bar publication Alternative Dispute Resolution Procedures in Alabama with Mediation Model, supra note 3, at 7.  See also William D. Coleman, Alabama Supreme Court Commission on Dispute Resolution, 59 Ala. Law. 236 (July 1998).

7 There are a number of publications containing specific examples of how well Christian conciliation works.  Ken Sande, The Peacemaker: A Biblical Guide To Resolving Personal Conflict (2d ed. 1997); Lynn R. Buzzard & Laurence Eck, Tell It To The Church (1985).

8 Institute For Christian Conciliation, Guidelines for Christian Conciliation 1 (rev. 3.8 1989) [hereinafter Guidelines].  A copy of the Guidelines can be obtained from Peacemaker Ministries, PO Box 81130, Billings, MT 59108.  Christian conciliation will be referred to as “Christian conciliation” or “conciliation” in this article.

9 See, e.g., Matt.  18:15-17 (setting forth steps for personal reconciliation); Lev. 19:17 (encouraging personal confrontation).

10 See Buzzard & Eck, supra note 7, at 57-58; Judith M. Keegan, The Peacemakers: Biblical Conflict Resolution and Reconciliation as a Model Alternative to Litigation, Mo. J. Disp. Resol. 11, 16 (1987).  Mr. Eck, now deceased, was Director of the Albuquerque CCS.

11 See Keegan, supra note 10, at 16; Anne Bachle Fifer & Gary Friesen, History of Christian Conciliation Service and Peacemaker Ministries (1998) (unpublished memorandum, on file with the Cumberland Law Review).

12 See Keegan, supra note 10, at 16; Fifer & Friesen, supra note 11.

13 See Fifer & Friesen, supra note 11, at 1.

14 CLS is a “Partner in Peacemaking”, a program established by Peacemaker Ministries. Ken Sande, founder of Peacemaker Ministries and founder of the CCS of Montana, is scheduled to be the keynote speaker for the CLS 1999 annual conference.

15 See Fifer & Friesen, supra note 11, at 2.

16 The Rules of Procedure for Christian Conciliation are found at Part IV of the Guidelines for Christian Conciliation discussed extensively infra.  Information on the CTP can be found on the internet at www.Peacemaker.net.

17 Fifer & Friesen, supra note 11, at 2.  The ICC continues to provide “conflict coaching, mediation, and arbitration services to resolve church and business disputes, lawsuits, and family conflicts.” Guidelines, supra note 8, at preface.  The ACCS ceased to exist on the date of the merger.

18 Guidelines, supra note 8, at preface; see also Glenn G. Waddell, Making Peace in Alabama, 59 Ala. Law. 244 (July 1988) (discussing the purpose and activities of Peacemaker Ministries).

19 As of December 30, 1998, there were 631 people enrolled in Peacemaker Ministries’ Conciliator Training Program.  Letter from Annmarie Hamling, ICC Conciliator Training Administrator, to Glenn Waddell (January 4, 1999, on file with the Cumberland Law Review).

20 There are approximately one-half dozen conciliation organizations still in existence.

21 Fifer & Friesen, supra note 11, at 2.

22 Keegan, supra note 10, at 12.  According to Mr. Eck, “[m]ost programs associated with the [CCS] charge[d] minimal ‘;filing fees’ and depend largely on contributions for the operation of the basic program.”  Buzzard & Eck, supra note 7, at 147.

23 Guidelines, supra note 8, at 1.  The authors have served pro bono in conciliation cases, but that is not their general practice.

24 Id.

25 Wayne Flynt, Alabama Baptists: Southern Baptists in the Heart of Dixie 18-19 (1998).

26 See, e.g., C.R. & S.R. v. E.__, 573 So. 2d 1088 (Fla. Dist. Ct. App. 1991) (considering an arbitration award in a case administered by the CCS of Central Florida).

27 Letter from Annmarie Hamling, supra note 19.  For purposes of this article, the Southeast includes Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Tennessee.

28 The opportunities for conciliation in Alabama are legion.  As an example, a Birmingham newspaper recently published a lengthy article about one man’s fight to quiet a barking dog in his neighborhood.  See Nick Patterson, A Long Dogfight: Neighbors Feud Over Years About Barking of Pets, Birmingham Post-Herald, Apr. 25, 1998, at C-1 (describing anonymous letters, an electric shocking collar, surgical removal of a dog’s vocal cords, allegations of dog poisoning and the filing of charges against the dog’s owner).   The Alabama Dispute Resolution Foundation, established recently by several Alabama attorneys and businessmen, has been well received in the State.  See Roy L. Williams, Foundation: Avoid Court, Resolve Disputes by Mediation, Birmingham News, Apr. 1, 1998, at B-1; see also Coleman, supra note 6 (describing the establishment of the Alabama Supreme Court Commission on Dispute Resolution in 1994); Judy Keegan, The Alabama Center for Dispute Resolution, Inc., 59 Ala. Law. 237 (July 1998) (discussing the Alabama Center for Dispute Resolution).

29 The New Merriam-Webster Dictionary 166 (1989).

30 Black’s Law Dictionary 262 (5th ed. 1979).

31 Guidelines, supra note 8, at 1.  The ICC defines a “conciliator” as one who serves as a “conflict counselor, mediator, or arbitrator.”  Id.

32 By “ordinary”, the authors mean the ADR methods most commonly utilized by attorneys and others involved in litigation or disputes headed toward litigation.  For reference purposes, these methods and associated standards are those described in Alternative Dispute Resolution Procedures, supra note 3.  Although the authors believe Christian conciliation is the most effective dispute resolution tool, they generally support the ADR methods described in that publication as well.

33 Guidelines, supra note 8, at 10.

34 Fisher and Ury, in their classic text on negotiation, clearly state that their method of “principled” negotiation “represents practical, not moral advice.”  Roger Fisher & William Ury, Getting To Yes: Negotiating Agreement Without Giving In at x (2d ed. 1991); see also Karon O. Bowdre, Law Practice: A Place for Moral Values, 57 Ala. Law. 158 (May 1996) (discussing the role of moral values in the practice of law).

35 Guidelines, supra note 8, at 2.  For example, Christians are discouraged from pursuing litigation against other Christians in most circumstances.  As stated by the Guidelines, “[g]enerally, Christians are not free to sue other Christians, at least not until they have exhausted the process that Jesus sets forth in Matthew 18:15-20 and I Corinthians 6:1-8.”  Id. at 4.

36 Id. at 3.

37 Id. (quoting Matt. 7:12).

38 Id.  Christian conciliation is available to non-Christians, so long as they respect the Christian principles underlying the process and agree to submit their dispute to conciliation.

39 For a discussion of other faith-based ADR programs and historical precedents to conciliation, see Keegan, supra note 10, at 14-16.  The most prominent example is the Bet Din, or Jewish Rabbinical Courts.  See also Lynne M.L. Fitzgerald, Mediation: A Systematic Alternative to Litigation for Resolution of Church Employment Disputes, 5 St. Thomas L. Rev. 507 (1993) (discussing the history of the church in resolving disputes and a 1969 proposal for each Catholic diocese to establish a Council of Conciliation).

40 Keegan, supra note 10, at 21.

41 Id.  at 11 (Rule 5 of the Rules of Procedure for Christian Conciliation [hereinafter ICC Rules or ICC Rule]).

42 See id. at 14 (ICC Rule 22).

43 Id.

44 Id.  at 15 (ICC Rule 24).  The parties must agree that the arbitrators can consider any information received during mediation as though it were received during arbitration.

45 Id. at 16 (ICC Rule 40B).

46 The ICC recommends the use of conciliation clauses and provides a sample conciliation clause in Part III of the Guidelines.  The enforceability of these clauses is discussed infra in the text accompanying notes 64-131.

47 See, e.g., Wisconsin v. Burns, 332 N.W.2d 757, 772 n.8 (Wis. 1983) (Abrahamson, J., dissenting) (inaccurately characterizing CLS as a group of attorneys who “do not believe in the adversary system” and who have formed conciliation service centers “to foster their philosophy”); Cherna v. Cherna, 427 So. 2d 395, 396 n.2  (Fla. Dist. Ct. App. 1983) (describing conciliation as a “novel dispute resolution method”).

48 E.g., Allen E. Gerenscer, Family Mediation: Screening for Domestic Abuse, 23 Fla. St. U. L. Rev. 43, 49 n.37 (1995); Jill Richey Rayburn, Neighborhood Justice Centers: Community Use Of ADR—Does It Really Work?, 26 U. Mem. L. Rev. 1197, 1201-05 (1996); Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negotiation L. Rev. 7, 21 n.51 (1996); Marietta Shipley, Family Mediation in Tennessee, 26 U. Mem. L. Rev. 1085, 1092 (1996).

49 53 F.Supp.2d 1101 (D. Colo. 1999).

50 The parties had placed in their contract the shorter version of the standard ICC conciliation clause, reprinted in footnote 64 below.  Encore Publications, Inc. v. PromiseKeepers, 53 F.Supp. 2d 1101 (D. Colo. 1999).

51 Id. at 1112.

52 Id. at 1112-13.

53 620 A.2d 1161 (Pa. Super. Ct. 1993).

54 Miller v. Miller, 620 A.2d 1161, 1168 (Pa. Super. Ct. 1993).

55 See id. at 1162.

56 See id.

57 See id. at 1163-64.  Compare In re Marriage of Ryan, 222 Mont. 188, 190 (Mont. 1986) (finding that the trial court properly took into account the recommendations of the CCS of Montana in rendering a child custody decision); Woodlands Christian Academy v. Logan, No. 09-97-348-CV, 1998 WL 257002 (Tex. Ct. App. May 21, 1998) (discussed infra) (declining to enforce a conciliation clause against a non-signatory).

58  573 So. 2d 1088 (Fla. Dist. Ct. App. 1991).

59 See C.R. & S.R., 573 So. 2d at 1088-89.

60 Id. at 1088 (quoting CCS of Central Florida, Inc. Rule 11).

61 See id. at 1089.

62 Id.  The court relied upon a Florida statute which required reporting of suspected child abuse in addressing the public policy question.  Fla. Stat.  Ann. § 415.504 (West 1989).  In dicta, the court questioned whether the payment of $250,000 should stand, describing the arbitration proceeding as “void.”  C.R. & S.R., 573 So. 2d at 1089.

63 ICC Rules allow the conciliator to “divulge appropriate and necessary information . . . when compelled by statute or a court order . . . [and when the conciliator] deems it necessary to contact appropriate civil authorities to prevent another person from being harmed.”  Guidelines, supra note 8, at 14 (ICC Rule 16D).

64 Guidelines, supra note 8, at 8.  As an alternative, the ICC suggests the following concise restatement of the above clause: “Any claim or dispute arising from or related to this agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation.  Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction.”  Id.

65 See Kahn v. Terry, 628 So. 2d 390 (Ala. 1993).

66 E.g., Morrison Restaurants, Inc. v. The Homestead Village of Fairhope, Ltd., 710 So. 2d 905 (Ala. 1998) (discussed infra in the text accompanying note 129).  Between January 1 and December 31, 1998, the Alabama Supreme Court ruled on the enforceability of arbitration clauses in at least 34 cases, one of which was Morrison and none of which involved a Christian conciliation clause.  From January 1, 1999, through August 20, 1999, the Alabama Supreme Court issued 36 additional opinions on arbitration.

67 The Christian conciliation cases are Encore Productuons, Inc. v. Promise Keepers, 53 F. Supp. 2d 110l (D. Colo. 1999) and Woodlands Christian Academy v. Logan, No. 09-97-348-CV, 1998 WL 257002 (Tex. Ct. App. May 21, 1998) (not designated for publication) (discussed infra in the text accompanying note 96).  See also Miller and C.R. & S.R., discussed supra in the text accompanying notes 54 through 62 (declining to enforce certain aspects of arbitration decisions issued under a conciliation process, but for reasons unrelated to the Christian nature of the process).

68 In Med/Arb, “parties begin with mediation and go straight to binding arbitration if they have not been able to come to agreement during the mediation session.”  Alternative Dispute Resolution Procedures in Alabama with Mediation Model, supra note 3, at 10.

69 The members of this organization are Fortune 500 corporations which have pledged to try to resolve disputes through alternatives to litigation.

70 A Drafter’s Guide to CPR Dispute Resolution Clauses (rev. 1998), Model ADR Procedures and Practices Series, New York.  Available in book form or at www.cpradr.org.  Also, see samples provided by the American Arbitration Association at their web site, www.adr.org.

71 Id.

72 How Contract Clauses Can Ensure ADR, vol. 15, No. 10, Alternatives to the High Cost of Litigation, 146, 152 (1997).

73 Tim Klintworth, The Enforceability of an Agreement to Submit to Non-Arbitral Form of Dispute Resolution: The Rise of Mediation and Neutral Fact-Finding, 1995 J. Dispute Resol. 181, 188 (1995); see also Lucy V. Katz, Special Issue on Alternative Dispute Resolution, Enforcing an ADR Clause—Are Good Intentions All You Have?, 26 Am. Bus. L.J. 575 (1988).

74 See AMF, Inc. v. Brunswick Corp., 621 F. Supp. 456 (E.D. N.Y. 1985) (likening the advisory opinion process to arbitration).

75 See DeValk Lincoln Mercury Inc. v. Ford Motor Co., 811 F.2d 326 (7th Cir. 1987) (describing the appeal process as “mediation” although no such term was used in the contract).

76 See Annapolis Firefighters v. City of Annapolis, 642 A.2d 889 (Md. Ct. Spec. App. 1994).

77 Fed. R. Civ. P. 16(c)(9) (including 1993 advisory committee notes).  See also the Alternative Dispute Resolution Act of 1998, P.L. 105-315.  This Act requires the federal district courts to authorize the use of ADR in all civil actions, adopt local rules, provide for the confidentiality of ADR processes and prohibit disclosure of related confidential communications.

78 Ala. Code § 6-6-20 (Supp.  1998).

79 See supra note 76, at 890.

80 53 F.Supp.2d 1101 (D. Colo. 1999).

81 Guidelines, supra note 8, at 8.

82 PromiseKeepers, 53 F.Supp.2d at 1106.

83 ICC Rule 42 states:  “[s]hould these Rules vary from state or federal arbitration statutes, these Rules shall control except where the state or federal rules specifically indicate that they may not be superseded.”  Guidelines, supra note 8, at 17.

84 PromiseKeepers, 53 F.Supp.2d at 1113-19.

85 Guidelines, supra note 8 at 11, 16.

86 PromiseKeepers, 53 F.Supp.2d at 1111.

87 As an example, “This Agreement shall be subject to and construed under the laws of the State of Colorado, to the extent such laws do not conflict with or contradict the parties’ agreement to resolve any claim or dispute arising under or related to this Agreement pursuant to the Rules of Procedure for Christian Conciliation.”

88 Carl Gregory Chrysler-Plymouth, Inc. v. Barnes, 700 So. 2d 1358, 1360 (Ala. 1997).

89 Ex parte Bentford, 719 So. 2d 778, 780 (Ala. 1998) (quoting from Capitol Inv. Group, Inc. v. Woodson, 694 So. 2d 1268, 1270 (Ala. 1997)) (citing AT&T Techs., Inc. v. Communication Workers of Am., 475 U.S. 643 (1986)).

90 Ex parte Beasley, 712 So. 2d 338, 340 (Ala. 1998).

91 728 So. 2d 592 (Ala. 1998).

92 Id. at 595.

93 See id.; cf. Ex parte Grant, 711 So. 2d 464 (Ala. 1997) (reversing an order compelling arbitration because document containing the arbitration clause was not a valid contract).

94 See Ex parte David Dickinson and Sandra Dickinson, 711 So. 2d 984 (Ala. 1998).  See also PromiseKeepers, supra note 81 (holding subcontractor was not bound by conciliation clause); Ex parte Steve Rush and Kim Rush, 730 So. 2d 1175 (Ala. 1999) (holding agreement can be evidenced by conduct rather than signature).

95 See Ex parte Dyess, 709 So. 2d 447 (Ala. 1998).

96 See Woodlands Christian Academy v. Logan, No. 09-97-348-CV, 1998 WL 257002, at *3 (Tex. Ct. App.  May 21, 1998).

97 See Matt. 5:37 (“Simply let your ‘;yes’ be ‘;yes,’ and your ‘;no’ be ‘;no.’”).

98 Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265, 281(1995) (emphasis added), cited in Delta Constr. Corp. v. Stephen Gooden, 714 So. 2d 975, 980 (Ala. 1998).  The grounds must relate to the arbitration provision itself, not generally to the contract.  The federal doctrine of severability treats the arbitration clause as if it were separate from the rest of the contract.  See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

99 See Ex parte Napier & Godfrey, 723 So. 2d 898 (Ala. 1998).  But see Ex parte Dorothy B. Foster, No. 1972306, 1999 WL 632555 (Ala. Aug. 20, 1999) (holding that financial hardship and inequality of bargaining power does not make an arbitration agreement unconscionable).

100 See Anniston Lincoln Mercury Dodge v. Conner, 720 So. 2d 898 (Ala. 1998).

101 See Ex parte Williams, 686 So. 2d 1110 (Ala. 1996).  The court did not specifically rule on the validity of the subject contract in Williams, but recognized that the incapacity of the person signing the contract containing an arbitration provision may be grounds for the avoidance of arbitration.

102 Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126 (7th Cir. 1997). Applying Indiana common law, the court held there was no contract because there was no consideration.  Although the employee had agreed to arbitrate, there was no reciprocal promise by the company to arbitrate in the “Understanding” that the employee signed.  The court agreed that there was an employer promise in the handbook, but she did not receive the handbook until after she had signed the Understanding.  Continued employment did not constitute consideration for the employee’s promise.

103 See Meyers v. Terminix Int’l Co., 697 N.E.2d 277 (Ohio 1998).  The Alabama Supreme Court may have found differently.  For a discussion by that court of reduced AAA fees for consumers, see Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33 (Ala. 1998).

104 See Ex parte Napier & Godfrey, 723 So. 2d 49 (Ala.  1998).

105 Id. at 52.

106 Id. at 52.

107 Id. at 53.

108 Henry C. Strickland et al., Modern Arbitration For Alabama: A Concept Whose Time Has Come, 25 Cumb. L. Rev. 59, 63 (1994).

109 Stanley D. Bynum et al., The Supreme Court’s Decision on Terminix Reaffirms the Scope of the FAA, 50 AAA Dispute Resol. J. 8 (April/June 1995); Henry C. Strickland, Allied-Bruce Terminix, Inc. v. Dobson: Widespread Enforcement of Arbitration Agreements Arrives in Alabama, 56 Ala. Law. 238 (July 1995); Strickland et al., supra note 108.

110 9 U.S.C. § 2 (1994).

111 The FAA excludes from its coverage “contracts of employment of seamen, railroad employees, or any other class of worker engaged in foreign or interstate commerce.”  9 U.S.C. § 1.  The Alabama Supreme Court has narrowly limited the section 1 exemption to seamen, railroad workers, and other workers actually involved in the interstate transportation of goods.  See, e.g., Robert Frank McAlpine Architecture, Inc. v. Heilpern, 712 So. 2d 738 (Ala. 1998) (finding that an architect is not the class of worker to be excluded from FAA coverage); accord O’Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir. 1997).

112 Ala. Code § 8-1-41(3) (1975); Garikes, Wilson & Atlinson, Inc. v. Episcopal Found. of Jefferson County, Inc., 614 So. 2d 447 (Ala. 1993).

113 Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265 (1995).

114 Allied-Bruce Terminix Co. v. Dobson, 628 So. 2d 354, 356 (Ala. 1993)

(applying the “substantial contemplation test”), rev’d, 513 U.S. 265 (1995).

115 See Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265 (1995).

116 Bynum et al., supra note 109 at 14.  Under the “commerce in fact” standard, an arbitration clause is enforceable if the transaction in fact involves or affects interstate commerce.

117 See e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (cited in Ex parte McNaughton, 728 So. 2d 592, 594 (Ala.  1998)).

118 Terminix, 513 U.S. at 270.

119 See Southland Corp. v. Keating, 465 U.S. 1 (1984).

120 Terminix, 513 U.S. at 277; see also Strickland, supra note 109 at 239 (noting that  “involving commerce” is the same as “affecting commerce” under Terminix).

121 Strickland, supra note 109 at 240.

122 See discussion of PromiseKeepers and this issue in the text accompanying note 87, supra.

123 694 So. 2d 1285 (Ala. 1997).

124 See id. at 1288 (citing Ex parte Warrior Basin Gas Co., 512 So. 2d 1364 (Ala. 1987)).

125 See id.  The clause covered “all disputes… concerning the vehicle, its sale or lease, and its condition, including disputes concerning the terms and conditions of the sale or lease, the condition of the vehicle, any damage to the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale or lease, any representations, promises or omissions made in connection with negotiations for sale or lease of the vehicle. . . .” Accord, PromiseKeepers, supra note 80 (noting broad language of conciliation clause).

126 Merrill Lynch v. Kirton, 719 So. 2d 201 (Ala. 1998).

127 Id. at 204.  The Court in this case cites two pages of cases dealing with breadth of arbitration clauses.

128 Ex parte Gates, 675 So. 2d 371, 374 (Ala. 1996).  Note that this language is very similar to the language suggested by the ICC.

129 710 So. 2d 905 (Ala.  1998).

130 Id. at 907 (citing Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala.1995)).

131 Ex parte Hood, 712 So. 2d 341 (Ala. 1998).  Justice Maddox writes a very convincing dissent, with the concurrence of Hooper and See.

132 See supra note 63.

133 Guidelines, supra note 8,  at 14 (ICC Rule 16A).

134 “Administrator”  is defined as any individual or organization that provides or facilitates conciliation.  Guidelines, supra note 8, at 10 (ICC Rule 3A).    If a case is administered by the ICC, this term encompasses both the ICC and the conciliators.

135 Guidelines, supra note 8, at 14 (ICC Rule 16D).

136 The Alabama Code of Ethics for Mediators similarly contains a confidentiality exception “where required by law . . . .”  Alternative Dispute Resolution Procedures, supra note 3, at 47 (Standard 6).

137 Guidelines, supra note 8, at 14 (ICC Rule 17).

138 This passage is actually one of the foundational passages for teaching biblical conflict resolution.  When a Christian is offended, he or she is required to: (1) talk to the other party in private; (2) bring in one or two others if the other party refuses to listen; and (3) tell it to the church if the other party refuses to listen to the “one or two others.”  Matt. 18:15-16; see generally Sande, supra note 7.

139 Guidelines, supra note 8, at 14 (ICC Rule 21).

140 E.g., Matt. 18:15 (requiring an offended party to go first to the offending party privately); Eph. 4:29 (exhorting believers to speak only words of edification); I Tim. 5:13 (condemning gossip).

141 Ninety-five percent of Alabamians claim an affiliation with the Christian faith, seventy-two percent profess to be “born again,” and sixty-seven percent state that they “regularly” attend church.  (Statistics from a September 1997 poll conducted by independent polling firm Wirthlin Worldwide, based in Alexandria, Virginia).