Litigation Between Brothers, part 2

ShepherdThere are a host of practical questions that arise in an effort to arbitrate a case between brothers. I don’t know all the answers, but here’s a stab at some answers–

Who is my brother?

This is, of course, the hottest, most difficult issue in the Churches of Christ today. I have my opinion (see The Holy Spirit and Revolutionary Grace, Do We Teach Another Gospel?, and Born of Water). You have yours. However, I’d urge anyone to blend their theology with a pragmatic view: will taking this question to court bring embarrassment to the church? will I get a better quality of justice going before a Christian arbitrator? will mediation within the church help get this dispute resolved?

Mediation and arbitration are generally very good for both sides, and there’s no reason to run from these alternative means of resolving disputes.

Disputes involving church splits and disputes internal to a congregation should never be taken to a civil court.

What if the local judge is a Christian?

I don’t think it matters. There are several reasons.

First, the case may be appealed to non-Christians or the judge may have to recuse himself for any number of reasons.

Second, civil court is always public and hence can embarrass the church.

Finally, a judge is sworn to honor the civil law. While I think arbitrations should generally follow the law of the land, when the law leads to an unfair result, the church can provide better justice. (I would caution against an arbitration agreement that allows the arbitrator to substitute his personal religious views for the law–there have been some really odd results in some cases!–but then the elders should never let the law be used to commit fraud.)

What if my brother refuses to cooperate?

Surely you jest? Why would a Christian refuse to follow the word of God?

If a Christian refuses to cooperate with Paul’s command, the eldership should treat this as an effort by their member to defraud another. Immediately after his teaching on litigation, Paul reminds his readers that they’ve committed to no longer do such things–

(1 Cor. 6:8-10) Instead, you yourselves cheat and do wrong, and you do this to your brothers. 9 Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither … thieves nor the greedy nor … nor swindlers will inherit the kingdom of God.

If a member refuses to submit the efforts of the church to resolve the dispute, he should be counseled, gently rebuked, prayed with, and if necessary, disfellowshipped.

We are plainly commanded to try to settle our disputes and to submit to Christian arbitration. Other than ignorance of God’s will, I can think of no honorable reason to refuse.

What if we are members of different congregations?

Then both elderships should be involved in the mediation–or neither–unless the parties can agree to work with just one (as I’ve seen happen). In a mediation, in most communities, it’s easy enough to retain a Christian attorney trained to help the parties resolve their dispute.

A mediator does not decide the case, only facilitates a negotiated resolution. That being the case, I see no reason why the mediator couldn’t be a believer from outside the church who shares your values.

What about a divorce?

The doctrinal issues are famously difficult, of course, and I have my own opinions. But ultimately, only the state can grant a divorce. A divorce cannot be arbitrated. On the other hand, in most states, neither can a divorce be defended. Once a party demands a divorce, the courts will grant it.

However, disputes over custody, alimony, and child support can indeed be arbitrated. More importantly, they can be voluntarily settled. The elders should insist that the divorcing couple work these things out amicably.

One of the least Christian things anyone can do is use child custody as a device to force property settlements, or refuse to pay child support, or seek vengeance against an ex-spouse via the children. The church may properly intervene to prevent such horrific behavior by a member.

Elders very properly work hard to prevent divorces, but once a divorce becomes inevitable, they often bow out. I believe there’s a very real pastoral need to be with the couple throughout the process and insist that they not fight over property or children. Of course, both sides are entitled to a fair result–especially the children!–but we can fairly call on our members to bring their Christianity with them to even their divorces.

I can imagine rare cases where property rights and such might be arbitrated, but the far better result would be for the couple to settle their disputes, as this will help them be in a better frame of mind to work together after the divorce.

Divorce is likely the time it’s most difficult for us to be true to our Christianity–and this is therefore likely the most important time for us to do so. We should impress the courts with our ability to struggle through truly difficult issues while keeping our commitment to Jesus.

Who should be the arbitrator?

A Christian lawyer qualified in the appropriate area of law and independent of the parties–preferably from another town. After all, someone’s going to lose.

How do we find a good Christian lawyer?

Word of mouth is best, of course. Pepperdine’s School of Law keeps a list of Church of Christ attorneys, as I recall. Call elderships in nearby towns. Call the local bar association’s president.

Probably the largest Christian lawyer group is the Christian Legal Society, and they may be able to make a reference:

What if a brother’s lawyer refuses to cooperate?

Insist that he fire the lawyer and hire a better one. A good lawyer will appreciate the merit of settling the case. Moreover, a lawyer should either share the values of his client or be able to represent those values.

About Jay F Guin

My name is Jay Guin, and I’m a retired elder. I wrote The Holy Spirit and Revolutionary Grace about 18 years ago. I’ve spoken at the Pepperdine, Lipscomb, ACU, Harding, and Tulsa lectureships and at ElderLink. My wife’s name is Denise, and I have four sons, Chris, Jonathan, Tyler, and Philip. I have two grandchildren. And I practice law.
This entry was posted in Litigation Between Brothers, Uncategorized and tagged . Bookmark the permalink.

0 Responses to Litigation Between Brothers, part 2

  1. Matt Vega says:

    Good article. FYI, Faulkner’s Thomas Goode Jones School of Law has an Alternative Dispute Resolution program and facilitates mediation/arbitration between Christians.

    Also we are looking to hire another full-time tenure track law professor for next fall. If you are interested or know of an attorney with strong academic credentials who is a faithful member of the church please let us know.

    Matt Vega (J.D., Yale)
    Associate Professor of Law
    Faulkner University
    [email protected]