By Ivy Scarborough, Attorney and Mediator, Jackson, Tennessee

February 1999 – We Christians have a responsibility to conduct our lives and ministries in a way which clearly distinguishes us from the world and its practices. Perhaps nowhere is there a greater need – and a greater opportunity – to distinguish ourselves than in our response to human conflict.

The breadth and seriousness of the trend to more – and more vicious – conflict is a commentary on the moral deterioration in our society. Conflicts between husband and wife, parent and child, church members and church leaders and pastors, not only often reflect human sins, such as selfishness and unforgiveness, but the undermining of the church’s authority and witness in the world. Untold misery and waste follow in the wake of much conflict. Often this conflict is carried over to the courts.

The apostle Paul spoke forcefully against resort to lawsuits in the secular courts to resolve disputes among believers: “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? …But instead, one brother goes to law against another – and this in front of unbelievers! The very fact that you have lawsuits among you means you have been completely defeated already (1 Corinthians 6: 1, 6-7).

The Church’s responsibility
Understanding Biblical principles and being sensitive to the human toll of conflict is not enough. We Christians often succumb to the practice of professing convictions and principles without actively implementing them. If, for example, we tell fellow Christians they should not take their disputes into the secular courts, and yet we offer them nothing as an alternative means of handling such problems, we may become inadvertently like the Pharisees, who, Jesus said, placed heavy burdens on men’s backs and then lifted not a finger to help. Churches should encourage and actively develop alternative methods for resolving disputes.

A broad area of professional practice has developed in the secular world in recent years which is designed to help people reach resolutions to disputes without going to the courts. It is known as alternative dispute resolution or ADR. Though ADR is relatively new, it is growing rapidly in popularity in the secular culture. We Christians should be in the forefront of adapting these skills. The jewel in the crown of ADR is mediation.

What is mediation?
In mediation, a professional trained in negotiation and conciliation (i.e., the mediator) functions as an independent and impartial figure who uses his skills to assist disputing parties in reaching their own resolution to a dispute. Typically, mediation is conducted in a conference room or office with only the mediator and the two parties to the dispute present. Others may participate, especially if the dispute involves several individuals. The informal mediation setting is more conducive to conciliation than the stiff, cold and often intimidating atmosphere of a courtroom.

Most importantly, mediation leaves complete control of the parties’ destiny and the resolution of their dispute in their own hands. The mediator cannot impose an agreement or solution on the parties. And either party may choose to leave the mediation process at any time.

Of course, this greater freedom calls for a greater degree of responsibility than some people will assume. Rather than cooperating in trying to reach a resolution, they may use the mediation process to berate, harass or frustrate the other party. But a skilled mediator can usually prevent, or at least limit, much of this behavior.

Why should disputants be in control?
The importance of allowing the parties to reach their own agreement cannot be overstated. Human beings are far more likely to be committed to agreements mutually reached than to resolutions imposed upon them by others, such as a judge. Human nature resents intrusions by others no matter what their authority, particularly in the most intimate and sensitive areas of our lives. Mediation permits people to retain control of their own lives.

By taking control of these decisions, the parties can build the foundation for a pattern of more cooperative, respectful behavior between one another. Indeed, a good mediator is always conscious that he is demonstrating communication and negotiation skills to the parties which they can then use in reaching future agreements. This instruction in conflict management can be of inestimable value, not only to the parties, but to others in their lives. Children, for example, who may have been deeply wounded by conflict between their parents, will benefit by more peaceful, respectful behavior between their parents.

Furthermore, no one knows better than those involved in the dispute what they face in the personal circumstances of their lives. A judge can never step into the shoes of the parties themselves. By retaining control of their own destinies, the parties may not get exactly what either wants, but they are much more likely to get something they feel truly addresses their needs.

Is mediation confidential?
Mediation shields the parties and their dispute from public exposure. Nothing has to be said in open court or filed in the court records. The parties’ personal lives are not hung out for everyone to see. Confidentiality can, in subtle ways, contribute to a lessening of tensions between the parties because each is able to maintain a greater degree of dignity and privacy in the mediation process than is possible in a court setting. Neither must expose his worst fears, concerns, or bad behavior for public or judicial scrutiny.

What about cost?
Mediation is always more economical than litigating in the court system. Usually the savings are substantial. When parties take their dispute to court, they must pay legal fees for at least two lawyers, plus court costs and other litigation expenses.

In mediation, the parties can share in the cost of paying for the single mediator. Usually they share equally in paying a mediator’s fee, though sometimes there is a disproportionate payment based on one party’s greater ability to pay.

Are lawyers needed in mediation?
The parties may choose to hire lawyers to be present during mediation. This may be appropriate if the mediation involves complex legal issues. However, for most disputes having lawyers present is unnecessary, increases costs, and may cause the mediation process to degenerate into an adversarial proceeding. Lawyers are so schooled in the adversarial process that many never escape the tendency to treat a dispute as a call to arms.

How long does mediation take?
Mediation is fast, or it can be, depending upon the parties’ attitudes. This can be very healthful. Emotional wounds caused by conflict cannot fully heal until the conflict is resolved. A lengthy court proceeding not only prevents that healing, but contributes to the opening and deepening of wounds. A mediator can schedule sessions promptly and continue them for as long as they bear fruit.

It has been my experience that a full agreement is more likely to be reached if the parties maintain their momentum. Much of what takes place in mediation, like nearly everything else in life between people, has emotional overtones. When the parties’ attitudes and emotions are at least marginally cooperative and conciliatory, it is best to go with the flow. If there are delays, one or both of the parties may reflect on their hurts and their bitterness in the interval between sessions. The only reason for delay is the occasional need to consider some proposal before making a commitment or to obtain legal advice. There is usually no need to rush to an agreement.

How to secure a binding agreement
Once an agreement is reached on one or more issues, the mediator drafts what is know as a “memorandum of understanding.” This document, which is signed by the parties, sets their agreement out in clear and simple language.

How to find a skilled mediator
Unfortunately, since the mediation profession is relatively new and is still largely unregulated in many states, good mediators are sometimes hard to find. Furthermore, some people hold themselves out as mediators though they have little or no real training or expertise in the field. An untrained person may waste money and time and actually make the conflict worse.

Furthermore, it would be far better if we Christians trained mediators rather than searched for them. Secular mediators, despite their conflict resolution training, may not share Christian values or adhere to Biblical principles. A sweeping commitment is needed from churches of all denominations to train Christian mediators from the ranks of pastors, church leaders and church members. A mediator may be trained in as little as 40-60 hours, though some form of internship or apprenticeship is preferred after that. Strong human relations skills, a patient temperament, and a commitment to learn the skills are the prerequisites to becoming a good mediator.

I also believe we should train Christian mediators to function in the secular world. A skilled Christian mediator who offers his services outside the church will have many opportunities to minister and model the Christian faith. Furthermore, with the growth of mediation in the secular culture, it is foreseeable that many Christians and bivocational ministers may be able to support themselves as professional mediators, thereby conducting parallel ministries.

Conclusion
Mediation should have great appeal for Christians. We have been told: “If it is possible, as far as it depends on you, live at peace with everyone” (Romans 12:18). Christians as “salt and light” in the world, can honor Jesus’ words: “Blessed are the peacemakers, for they will be called the sons of God” (Matthew 5:9), through Christian mediation and peacemaking.  

Mediation and local church authority
Mediation is the second level of the process of “Christian conciliation,” according to the Institute for Christian Conciliation (ICC). In the booklet Guidelines for Christian Conciliation, ICC writes:

Initially, one or both parties in a dispute 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.

ICC contends that in Matthew 18:15-20, “Jesus gave the church primary responsibility and authority for resolving conflict and alienation among Christians.” The passage also “sets forth the process that involves private discussions, mediation and authority to make a binding decision.” ICC sees its ministry as serving the church in implementing the Matthew 18 process.

Therefore, ICC encourages Christians involved in conflict to turn first to their church leaders for counsel and assistance.

ICC also offers a program which helps churches and other organizations promote biblical peacemaking and a training program for Christian conciliators.

For more information, write ICC, 1537 Avenue D, Suite 352, Billings, MT 59102, voice 406-256-1583; fax 406-256-0001; E-mail [email protected].