Another advantage to the process of mediation is that it can lead the elders, the pastor and his staff to reconciliation. This results in the re-establishment of friendly relationships and peace where there has previously been hostility and alienation. The process of mediation may also result in an agreement to remove the offense that caused the disruption of peace and harmony.
MEDIATION WITH THE ELDERS, THE PASTOR AND THE STAFF TO RESOLVE CONFLICT AND TO PRESERVE AUTONOMY
Disputes involving the leadership and a church pastor or a staff member may reach the point where the church leadership believes the only hope of resolution is by removing the pastor or a staff member. Before such a conflict has reached a crisis (or, ideally, well before that point) the church leadership and the pastor or a staff member may recommend that they consider the option of a confidential mediation to resolve the conflicts and to effect reconciliation through the services of a Christian attorney who is trained in the mediation process.
WHAT IS MEDIATION?
Mediation is a voluntary process whereby the church leadership such as the board of deacons or the board of elders appoints a representative to meet with a Christian mediator and the pastor or staff member in an attempt to positively resolve a dispute in the management or the operation of the church.
Church disputes often possess traits that may make mediation a particularly attractive option for the church leadership, the pastor and the congregation. For example, church disputes routinely involve a pastor or staff members who wish to maintain a long—term relationship with the congregation and the church leadership. In spite of the current conflict, the church leadership often recognizes that a formal church meeting may lead to the destruction of close family relationships among the church members or even a church split in membership. As a result, mediation can be the key to timely resolving the conflict without the delay in having to give the notices required in the by-laws before the matter can be presented to the entire congregation. In addition, the congregation’s decision may not be valid because a quorum of the members did not attend the meeting.
The successful resolution of church disputes involving a pastor, a staff person and church leaders in a confidential manner may result in a more creative solution than the “win-lose” principles embodied in formal church meetings. The mediation will involve the identification of issues, emotions, and conflicts that may have been underlying church leadership relationships for many years, involving much deeper issues than the parties themselves may understand, such as unspoken and unacknowledged beliefs and feelings. By acknowledging the complex background of a particular church leadership conflict, and providing a forum to address these complex issues outside the hearing of the congregation, confidential mediation offers with prayer and humility a creative and private way of resolving the issues.
Mediation is less time-consuming than a church meeting and can be done privately. This may avoid a church split following a governance vote from the congregation. In addition, because a dispute regarding the pastor, his staff or the church leadership often involves very private personal, family, medical, or financial issues, mediation offers a private dispute resolution alternative to the public disclosure resulting from a formal church governance meeting or civil litigation.
The opinions of the pastor or the staff member often tend to be either disregarded as unrealistic, or overshadowed in a church governance meeting by the opinions of well—meaning leadership board. For this reason, central to the successful practice of mediation is the recognition that the pastor or the staff member is an equally important participant: his voice must be heard, and respected, if the conflict is to be resolved in mediation.
THE MEDIATION PROCESS
As opposed to litigation, mediation is a voluntary process in which a neutral third party helps guide the parties in conflict toward an understanding of their dispute; control of issues and emotions; compromise and resolution of that conflict; and, perhaps, toward a new way of relating to church members.
The mediation process is designed to be flexible. Thus, although not every mediation will follow this outline, the mediation typically involves the following stages:
1. Pre—mediation — (a) Determine if the case is appropriate for mediation; and (b) identify those who should attend the mediation.
2. Forum with all parties — The mediator strives to ensure that the voices of all interested parties are considered.
3. Identification and analysis of the issues — Church disputes often involve issues, emotions, and conflicts that may have been underlying the
leadership and the pastor or the staff’s relationships for many years. The mediator guides the parties toward confronting, overcoming and resolving these disputes in a more creative and comprehensive way.
4. Mediation sessions – Mediation sessions may occur with all parties together, or may “caucus” into smaller groups. The parties “brainstorm” and generate a range of options for solving the problem.
5. Reaching an agreement – The agreed upon solutions are then memorialized in a written agreement that is signed by all of the parties to be affected.
6. Monitoring – The parties agree to meet monthly at a specified time to confirm that the agreement is being followed and to discuss any impediments to its implementation.
SKILL SET OF THE EFFECTIVE MEDIATOR
The most important of the mediator’s requisite skills is listening and communication: the mediator must recognize both verbal and nonverbal messages of the parties, and must consider not only the substantive/content aspect of the message, but also the affective/feeling aspect, keeping in mind that the mediation is often “about” much more than the discrete issue that has brought the parties to the table.
The mediator must exhibit empathy and be non-judgmental. An understanding of the law, including the various options that may be available in the church context, is critical in ushering the parties toward a successful resolution of their issues. Finally, and above all, the mediator and the parties must be patient and prayerful in order to allow the process to work.
A CHUCH IS NOT IMMUNE FROM CIVIL COURT ACTIONS
It is important to remember that a church is not immune from a civil law suit when the cause of action is based on negligence or breach of contract. Likewise, a church can be liable in a court of law for failing to adequately supervise its employees who negligently cause injury to a church member or another person. The First Amendment to our United States Constitution only prohibits a court of law from ruling on inter-organizational issues of church governance, beliefs, doctrines, rules and discipline.
1 Corinthians 6:1 states, “If any of you has a dispute with another dare he take it before the ungodly for judgment instead of before the saints?” In Luke 12:57 and 12:58 Jesus taught that Christians must be reconciled with an opponent – even on the way … to the magistrate – in order to avoid being thrown into prison and having to pay the last penny. In Matthew 5:25 and 26, Jesus reminds us that we should, “Agree with thine adversary quickly, while thou art with him in the way; lest haply the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison. 26Verily I say unto thee, thou shalt by no means come out thence, till thou have paid the last farthing.” Jesus is explaining that it is particularly bad for Christians to get angry at other Christians who have themselves also been spared God’s wrath. Restraining one’s wrath against a fellow believer (or any other person) is a virtue still desperately needed today.
There is accordingly much wisdom in Christians who are represented by attorneys in first attempting to resolve their civil differences against a church or its staff members through non-binding mediation to thus avoid turning the outcome of the controversy over to a court of law. If the mediation process fails to reach an amicable resolution, the matter can still be resolved in the civil court.
Gregory G. Gay, Esq.
Gregory G. Gay, Esq. is a Church Mediator
Gregory G. Gay, Esq. has earned a Masters in Divinity degree from Southeastern Baptist Theological Seminary and has also earned a Master of Arts in Biblical Studies degree from Dallas Theological Seminary. Mr. Gay has also earned a Juris Doctorate from Florida State University and has practiced law in Florida for in excess of 35 years. He is a member of Idlewild Baptist Church in Tampa, Florida.
Mr. Gay is certified by the Florida Supreme Court as a Civil Court Mediator. Mr. Gay is Board Certified by the Florida Bar in Elder Law and in Wills, Trusts Estate Planning and Probate. Mr. Gay is also certified as an Elder Law Attorney by the National Elder Law Foundation and is designated as a Certified Advanced Practitioner by this Foundation.
To learn more about retaining Mr. Gay to serve as a church mediator, please call him at 1-800-226-0512 or email him at firstname.lastname@example.org.