On a routine basis, Christian business owners and ministry leaders insert faith-based arbitration clauses into their legal documents in order to avoid litigation, lower legal costs and comply with faith-based ideas of conflict resolution. Using these arbitration clauses, religion is being used to sort out secular problems such as financial fraud or wrongful death. For example, when the family of Nicklaus Ellison sued Teen Challenge in 2012 to uncover what had happened to their son and learn why he died, they hit a brick wall: when he was admitted to the program, he signed a contract that prevented him or his family from taking Teen Challenge to court to find out all that Teen Challenge knew about his death.
Religious based arbitration is a normal part of life these days. According to the Pew Research Center, Jewish, Catholic and other groups (some 15 total) have alternative forms of dispute resolution based on their religious faith. The center has published a good overview of these groups and how their arbitration processes work.
But faith-based arbitration clauses are not limited to religious groups. Businesses owned by believers of various faiths use these clauses in their legal documents too. Take Higuera Hardwoods as one example. A Seattle-based business that provides products made from bamboo, Higuera has this arbitration clause on its’ web site:
“…Arbitration shall be by a single arbitrator experienced in the matters at issue and selected by principal and agent in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries. The arbitration shall be held in Seattle, Washington and shall be conducted in accordance with the Rules of Procedure for Christian Conciliation existing at the date thereof of the Institute for Christian Conciliation, a division of Peacemaker Ministries, to the extent not inconsistent with this Agreement. The decision of the arbitrator shall be final and binding and may be enforced in any court of competent jurisdiction….”
Higuera is not alone. Aramaco (a Saudi-owned corporation) is an example of a business that uses an Islamic-based arbitration clause. This activity participation agreement uses Christian arbitration as one of its dispute resolution methods. Many Christian organizations – like the Holmesburg Christian Academy – uses faith-based arbitration in their agreements. Even missionaries are asked to submit to faith-based arbitration. These clauses pepper the legal landscape in the Christian world and are inescapable in many instances. You agree to arbitration or you don’t get hired, you don’t go on the mission trip, you don’t purchase the product you really need and so forth. Because the arbitration clauses are simply presented in a “take it or leave it” method, many unsuspecting patrons agree to them, not realizing how much of their jurisprudence rights they are forfeiting.
In the New York Times, Michael Corkery and Jessica Silver-Greenberg cover this topic in their thought-provoking article In Religious Arbitration, Scripture is the Rule of Law. The authors outline three different scenarios in which faith-based arbitration clauses were used by faith-based organizations. In two of their examples, the organizations gained a favorable outcome. In the third example – Northlake Christian School in Covington, LA – the school didn’t get the outcome they wanted, so they reverted to the American legal system to appeal the arbitration ruling. Corkery and Silver-Greenberg note in their article that “…for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.”
I suspect that Christians in American would generally support Christian arbitration as an alternative to secular courts, if for no other reason than it is a cost-effective way to resolve conflict. Many would support the principles behind the Rules of Procedure for Christian Conciliation, published by Peacemaker Ministries, if not the process itself. But I also suspect that nearly all American Christians would not support the same right for Muslims living in this country who want to resolve their disputes using Sharia Law. At an intuitive level, Muslims understand this. Writing on his site, theamericanmuslim.org, Sheila Musaji, Founding Editor notes:
“As an American Muslim I would be opposed to any suggestion that Sharia replace our American legal system for American Muslims or any other Americans, and I would be the first to fight any such possibility. However, the inclusion of Sharia arbitration or alternative dispute resolution that might be utilized by Muslims who so choose after signing a binding arbitration agreement (signed by both parties in a dispute), or that might file an amicus brief with the court is not an alarming new idea. In fact, it is an existing option for religious communities. Any decision rendered by a tribunal or a panel of mediators is subject to appeal to the courts and must be consistent with American law and our Constitution. This is how the law already exists. The various anti-Sharia bills are based on the idea that they would prohibit certain provisions of foreign laws including Sharia law from being considered by a court if they do not afford the same liberties, rights and privileges guaranteed by the US Constitution. That is already the case. The existing laws of the U.S. and the Constitution of the U.S. are already the final arbiter.” [Emphasis his]
Canada has grappled with this from a family law perspective. Sometimes, the use of arbitration within the context of family law deserves special attention because, writes Caryn Litt Wolfe in the Fordham Law Review, “…family law often involves more vulnerable members of society, and religious doctrines used in deciding family law issues may present human rights concerns. Indeed, in September 2005, the premier of Ontario, Canada rejected a proposal to establish Islamic arbitration panels, putting its other already existing faith-based arbitration systems at risk.” This ruling in Ontario led Mariam S. Pal in a draft presentation at the Kwantlen University College in 2006 to conclude that the more we allow the privatization of what are fundamental government functions (my words, not his), “…it could be argued that the government….[is] reneging on their responsibility to provide access to justice for all.” Put another way, does faith-based mediation recognize cultural and religious diversity or does it marginalize minority communities to the outer reaches of society?
So, should a Christian business owner insert faith-based arbitration clauses into contracts and other legal documents? I offer some principles to consider to any Christian Business Owner or Ministry leader:
First, only insert arbitration clauses if you honestly believe your faith teaches a better way based on better principles of resolving conflict than currently exists in our system of American jurisprudence. If you applaud your faith-based systems of arbitration when the outcomes are favorable to you but then revert to the secular courts when you receive an unfavorable ruling, you’re demonstrating that your faith-based arbitration clause are more about controlling the outcomes of your disputes and less about honoring the faith you profess. If you really believe in faith-based arbitration, then rule out the possibility of appealing in court when you don’t get your way. If an arbiter’s ruling causes you to suffer, then accept the suffering as part of God’s work in your life to mature you into His image.
Secondly, be sure to understand that many of the process rules that we take for granted in our legal system may not apply or be utilized in an arbitration system. For example, unlike a trial, the rules of evidence are much more relaxed during arbitration. Hearsay and other evidence that may not be allowed in court can be presented during arbitration. After reviewing the presentation from both sides, the arbitrator will make a final, often binding, decision. Unlike in trials, this decision does not have to be based on the law. The arbitrator can make a decision based on what he or she thinks is just. Moreover, the decisions are usually regarded as final and can only be appealed in very limited circumstances. You give up a number of your rights when you submit to arbitration. Take this into consideration when deciding on the cost of litigation vs. the convenience of arbitration.
Thirdly, if you insert faith-based arbitration clauses from a motivation of trying to make your business more “Christian” (or “Catholic” or “Jewish” or “Muslim”), then you’re barking up the wrong tree. What makes your business distinctive is not what you write in your legal contracts but in how you treat others who are your enemies. Contracts notwithstanding, Christians are commanded by Christ to love our enemies and to do good to them when they are persecuting us. Consider Matthew 5.43 – 48:
“You have heard that it was said, ‘Love your neighbor and hate your enemy.’ But I tell you, love your enemies and pray for those who persecute you, that you may be children of your Father in heaven. He causes his sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous. If you love those who love you, what reward will you get? Are not even the tax collectors doing that? And if you greet only your own people, what are you doing more than others? Do not even pagans do that? Be perfect, therefore, as your heavenly Father is perfect.”
And again in Luke 6.27 – 31:
“But to you who are listening I say: Love your enemies, do good to those who hate you, bless those who curse you, pray for those who mistreat you. If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them. Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back. Do to others as you would have them do to you.”
How you treat people who have wronged you will say more about your persona and your business than any arbitration clause you’ll insert into your contracts. Don’t insert them just to look good. That’s a poor motivation for engaging in alternative dispute resolution methods.
Fourthly, do not insert these clauses simply as a cost-savings measure. You may find that what an arbiter decides will cost you more in unforeseen ways than using lawyers and litigation to settle disputes. This can be the case when discovery rules that are followed in litigation are not available in arbitration. If the other side withholds information that is helpful to your argument and if the arbiter doesn’t catch it, such oversights can cost you dearly.
Lastly, hiding behind some Christian arbitration rules and methods in order to deprive the other party of their basic rights of justice before the law is sin and will not fool God. As a Christian business owner, you should not deprive someone else of the basic rights of justice afforded to them by their government.
In the end, it isn’t wrong or unethical for a Christian business owner to insert faith-based arbitration clauses into contracts and legal documents. But it’s not the panacea that many think it to be. There are pros and cons to this issue. In the end, resolving a conflict has less to do with arbitration vs. litigation and more to do with the willingness of the parties to admit where they are wrong and how best to reach and agreeable solution.
One last thing: As a Christian business owner or ministry leader, in order to resolve conflict well, you’ll need to have an eternal perspective on the conflict itself and whatever outcomes materialize. Having an eternal perspective (much of what you’re fighting for may not really matter) plus a health theology of suffering (God usually takes us through suffering to mature us into His image) will help you more than any other two elements to resolve conflict in a peaceful and permanent way.
Founder, Bible and Business