Inquiry is made concerning the ethical propriety of participating in a conciliation, or mediation program organized, promoted and sponsored by a non-profit Christian organization.
Christian Conciliation Service (CCS) is a national organization operating under the auspices of the Christian Legal Society. Christian Conciliation Service of East Tennessee, Inc. is a nonprofit affiliate of CCS. There are currently 37 independent CCS organizations or ministries in 20 states. CCS of East Tennessee, Inc. is a Christian ministry founded upon biblical principles with a goal to reconcile parties in dispute to one another and to God.
CCS is funded primarily by contributions from churches, businesses, and individuals. The parties themselves pay a $50 filing fee per party, which offsets administration costs. The filing fee covers the first sixteen (16) hours of mediation. If further time is needed, or the dispute goes into binding arbitration, an additional fee may be charged; again, only to offset administration costs. The filing fees are waived if the parties are unable to pay.
CCS of East Tennessee, Inc., is run by a Board of Directors made up of clergymen, businessmen, lawyers, and the like. There is also an Advisory Board composed of representatives from as many different denominations as possible. The Executive Director carries out the day to day functioning of the Service, including educational presentations, consultations, forming panels, training Peacemakers, general administration, and the like. The Peacemakers or Conciliators, are volunteers who serve on panels of three to resolve disputes between the parties. There is usually a clergyman, a lawyer, and a layperson on each panel. Except for the Executive Director, all Board members and Peacemakers are volunteers.
The parties are urged to work out their differences privately, between themselves. If this has been attempted without success, CCS may become involved. CCS attempts to work with the parties' church(es) whenever possible. If any party is a member of a church, then permission of that church must be secured before any conciliation efforts are made.
A panel of three Peacemakers is chosen by the Executive Director and approved by the parties. A panel generally consists of a clergyman, a lawyer, and a layperson who has some expertise in the area involved in the dispute. Lawyers are utilized for their abilities to elicit pertinent facts, investigate, and think logically. When possible, Peacemakers who know the parties are brought in to resolve the dispute.
CCS handles a wide variety of disputes. Almost any dispute wherein the parties are willing to submit to Christian conciliation procedures can be dealt with by CCS.
The parties are told at the outset of the conciliation process that no legal advice will be given to them by CCS or any lawyer involved in the conciliation process, and that any lawyers involved represent neither party to the dispute. The parties are encouraged to seek outside legal advice before beginning the conciliation process and are told that CCS does not attempt to protect their legal rights. Any legal advice, other than the most general, legal drafting, and the like, come from outside, independent attorneys.
Any lawyer who serves on a peacemaking panel cannot later represent any party to the dispute on any matter related to or stemming from those things discussed during the CCS process. If a lawyer has represented any party to the dispute in the past, that lawyer may not serve on the panel.
If any party is represented by an attorney, contact with that party by CCS will be made only with the consent of that attorney.
To insure that these guidelines are understood and fulfilled, each party to the conciliation process signs an agreement which outlines the procedures used in the CCS process and that fact that CCS does not protect the legal rights of the parties, nor do any of the attorneys engaged in the conciliation process. Attorneys involved in the process also have these guidelines explained to them before the process begins.
When the parties agree to Christian conciliation, they sign an agreement stating that they understand that any matters discussed during conciliation are confidential and will not be discussed with anyone outside of the conciliation process. The parties also agree, as a prerequisite to conciliation, that they will not use statements made during mediation in subsequent lawsuits and that they will not subpoena CCS records, or CCS staff members, either paid or volunteer, for any such suit. The same rules apply to any and all Peacemakers whether or not they are attorneys.
Formal Ethics Opinion 83-F-39, issued by the Board on January 25, 1983 states that divorce mediation, as described in the opinion, constitutes the practice of law. The opinion concludes that it is unethical for an attorney to engage with a non-lawyer in a profit generating business of offering such divorce mediation services to the public.
The same threshold issue is presented in this inquiry as was presented in Formal Ethics Opinion 83-F-39; that is, whether or not the proposed Christian conciliation, or mediation program, constitutes the practice of law.
There are several differences between secular mediation and the type of mediation, or conciliation, in which CCS engages.
First, most secular mediation services are run by lawyers for profit. CCS is a nonprofit corporation - it is a Christian ministry, not a business. The only fees involved are used to help offset administration costs, and those costs are not fully covered by the fees charged. The Executive Director's position is the only salaried position, and that salary is in no way dependent on the number of disputes handled or the results achieved. All other persons involved in the CCS process are volunteers.
Second, in secular mediation services, the lawyers involved are giving legal advice and are representing both parties in the dispute. Lawyers involved in the CCS process give no legal advice and represent no party to the dispute. The parties are made aware of this fact during the initial contact and are told that if they want their legal rights protected, they should seek outside legal advice. Similarly, if any legal drafting needs to be done, an outside, independent attorney is hired by the parties to do it.
Finally, the goals and principles used to achieve those goals differ significantly between secular mediation and Christian conciliation. In secular mediation, the mediator seeks to reach a compromise position that all parties can accept. In Christian conciliation, the primary focus is on the relationship between the parties as opposed to the resolution of the dispute itself, and the dispute itself becomes the means to this end. The primary goal is complete forgiveness between the parties; yet in some cases this is not attainable. A resolution of the dispute will then be sought by the Peacemakers, as a secondary issue, but the focus is still on the relationships involved. Instead of applying legal principles and rules, Peacemakers apply biblical principles, rules, and examples.
The proposed Christian conciliation, or mediation program, as described herein, does not constitute the practice of law and there is no ethical impropriety in an attorney participating in the program.
This 22nd day of August, 1985.
G. Wilson Horde, Chairman
T. Maxfield Bahner
Charles T. Herndon, III
APPROVED AND ADOPTED BY THE BOARD