Tehmina Arora | AIM June 2004

Church/Christian organisations are as susceptible to conflict as any other human organization. For, all though they serve God and advance His kingdom, the effects of the fall of man, differing view points, etc, remain. These inevitably lead to conflicts.

Conflicts can take many forms. For example, low-key gossip and slander can poison an entire congregation. Unresolved tensions between pastors, elders, and deacons can destroy cooperation and rob a church of effective leadership. Deadlocks on church committees can cripple needed ministries. Similarly, prolonged family conflicts can lead to rebellious children or bitter divorce. And disputes between members who do business with one another can lead to consuming lawsuits.

In fact, much time and money is needlessly wasted in legal and court procedure and fees. For, parties seeking an amicable settlement 01 a dispute can rather resort to arbitration or mediation. Although the terms mediation and arbitration often are mistakenly used interchangeably, the process is quite different.

During mediation, a neutral third party merely steers the two disputing parties toward a settlement-but has no authority to establish a binding outcome. Whereas arbitration enables a neutral third party to issue a final decision on the matter at hand. The arbiter can rule entirely in favor of one side or the other-or can establish a compromise. The decision is binding on both parties but they have the right to appeal in the court of law.

Mediation: Mediation is an alternative process by which families, organizations, churches, who are in conflict, can sit down together with mediators to discuss ways in which they can resolve problems or differences.

Mediation is a voluntary process, where all parties involved must agree to participate. It is effective, free, neutral, and convenient. Although the mediator(s) control the process, the conflicting parties control the outcome as all decisions are mutually acceptable.

Further, mediation is not legal representation, personal or marital counselling, nor is it a replacement of the existing judicial process or a forum to determine guilt or innocence. It merely assists parties in reaching a voluntary, un-coerced agreement without the parties having to go to a court.

How does one prepare for Mediation?
• Before mediation occurs, it is beneficial for both parties to think about possible compromises or solutions to the problem.
• Parties can decide what they want from the other and what they are willing to give in return.
• Each party should come prepared to present their respective views regarding the conflict.
• Parties must be willing to listen to each other's perspective on the issue.

What does the process involve?
Firstly, the mediation would require an understanding between the disputing parties to use the process of mediation to resolve the dispute. Secondly, a mediator would need to be decided upon. At an inter church organisational level, the pastor or head of the department can also be asked to mediate, however it is advisable to invite a neutral, third or outside party to mediate the dispute. Person with good understanding on the relevant issues alone must be appointed as mediators. Also, it is essential that the person/s mediating is/are well versed with the situation and would not merely try to split the baby, i.e. provide lopsided relief to the genuinely aggrieved party.

Written submission, as in a court of law, should be filed along with evidence to support the claims in mediation. Once a mutually acceptable decision is reached, an agreement stating the terms and conditions should be drafted and signed by both parties.

What is the role of the mediator?
The mediator/s must be person/s of high character and integrity and be mutually decided upon by the disputing parties. It is suggested that each disputing party nominate one person each to mediate and these nominated persons then together decide upon a 3rd mediator.

The mediator may provide information about the process, raise issues, and help parties explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute. Parties shall be given the opportunity to consider all proposed options.

• Listen to all sides of the dispute.
• Focus on problem-solving rather than blame.
• Assist participants in reaching their own solution.
• Act as neutral, third parties.
• Aid in writing mutually acceptable agreements.
• Maintain confidentiality.

What is the Agreement?
.:. A self designed document of mutually acceptable behaviours or actions signed by both parties.
• Each party receives a copy of the agreement.

Why some mediation fail?
There are also times when mediation does not work. The failure in the mediation process may be due to something as simple as a matter of timing or preparation rather than the process of mediation in itself. However, mediations often fail when they are acting in bad faith. It is a primary tenant of mediation that the parties enter it in good faith. Malicious, bad faith litigation is a good example of the kind of bad faith that reduces the chances for success of mediation. After all, thieves will rarely change their stripes and become trustworthy or legitimate just because they have entered a mediation session. Mediation with many of them is as fruitful as mediating with a thief on the issue of his or her profession.

Arbitration: In arbitration, disputing parties take their argument to a neutral third party, the arbitrator, for a binding decision. The arbitrator listens to witnesses and reviews documents before making a ruling.

The parties also must sign a written contract to arbitrate that defines what the arbitrator is to decide, and selects an arbitrator (arbitrators may De lawyers or non-legal persons who have expertise in the matter under dispute, depending on the case).

After that, an arbitration hearing is held. Each side presents witnesses and other evidence, and is allowed to question the other side's witnesses. Then the arbitrator renders a decision. The decision is binding on both parties but they have the right to appeal against it.

Most people find arbitration less costly, faster and less stressful than a formal trial and Christian organisations will find it useful if they were to insert an arbitration clause in all contracts they enter into. This would ensure that before approaching a court of law the disputing parties would necessarily go through the process of arbitration.

An arbitration agreement/clause must be in writing. Although no formal document is prescribed, it must be clear from the document that the parties had agreed to the settlement of dispute through arbitration.

It is also urged that bodies be formed that would be able to provide, as and when needed, qualified mediators to address a variety of issues.

The Christian Legal Association of India can be contacted at cla@touchte/india.net or by writing to c/o EFI, 8051 92, Deepali Building, Nehru Place, New Delhi -110019