Christian conciliation clauses in estate planning

Many of our clients are people of strong faith backgrounds who believe that disputes in their families or relating to their businesses should be resolved outside of court and according to a process and principles consistent with their beliefs.  Many of our Christian clients use alternative dispute resolution clauses which require disputes to be resolved by mediation, a process involving two disputing parties and usually a single third party neutral who sits with the disputing parties to help them find a resolution of their dispute based on their shared principles.  One such process is "Christian conciliation" under Peacemaker Ministries' Institute of Christian Conciliation Rules of Procedure.  Under these rules, a mediator assists the parties.  If the dispute cannot be resolved by mediation, the matter proceeds to arbitration with a neutral third party, but again is resolved outside a court.

Business clients can use a form of this type of agreement in their contracts:

Any claim or dispute arising from or related to this agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemakerâ Ministries.  Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction.

A basic form of this clause for those planning a will or trust might include something like the following:

We request that any questions or disputes that arise during the administration of this trust be resolved by mediation and, if necessary, arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute of Christian Conciliation, a division of Peacemakerâ Ministries.  Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction.

In some cases, clients should assist their attorneys to draft a more precise and specific type of clause which is designed specifically for their family, such as the following:

As a Christian I believe that the Bible commands Christians to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church (see Matthew 18:15-20; 1 Corinthians 6:1-8). Therefore, any claim or dispute arising from or related to our trust shall be settled by biblically-based mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker® Ministries (complete text of the Rules is available at www.peacemaker.net/Rules) (Rules).

In the event of any disagreement relating to our trust, our Trustee shall speak directly to the other persons involved in the conflict as soon as our Trustee becomes aware of the disagreement.  If efforts to discuss and resolve the issue(s) in a one-to-one manner are not successful within a reasonable period of time, either party may ask that the issue(s) be submitted to mediation as set forth in this provision.

In the event mediation is requested, the requesting party shall contact the Institute for Christian Conciliation (ICC) (www/peacemaker.net/ICC) and open a case and pay the initiating case administrative fee.  Upon notice that a case has been opened, the non-initiating party shall acknowledge the same and execute a mediation and/or mediation/arbitration agreement as requested by the ICC Case Administrator.  The mediator(s) for the mediation shall be selected pursuant to the Rules.  The mediator shall be selected from the Roster of Conciliators of the ICC, with each party being permitted to review the qualifications of the proposed mediator, submitted by the Case Administrator, and approve the same.  In the event either party objects to the nominated mediator, each party will be permitted to select from a panel of three mediators nominated by the Case Administrator.  The mediator receiving mutual selection by the parties shall serve as the mediator.

The fees and expenses of the mediator and the mediation shall be shared equally between the parties to the mediation.  Any advance retainer request for such fees and costs shall be paid equally by the named parties.  In the event one party fails to make such payment, the other party may pay the same on their behalf, and it shall be agreed that the non-paying party shall be liable for such fees and costs, unless otherwise agreed by the parties.

In the event the matter is not resolved in mediation, it shall proceed to arbitration.  The arbitrator shall be selected according to the Rules as set forth above for the selection of the mediator.  The Case Administrator shall select and appoint a single arbitrator following the process for selection set forth above.

The intent and purpose of pursuing resolution through this process is to seek a timely and cost effective resolution and to preserve or give opportunity to restore any break or strain to the relationship between my family members.  To this end, our Trustee shall engage under the Rules with a cooperative, rather than adversarial approach, and will seek to share relevant information and permit discovery of necessary information in the most cost effective means possible.   

The Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction.

At DRC we are always thinking about accomplishing our clients' goals, including by using process and drafting tools that minimize dispute and which allow disputes to be resolved according to the needs and values of our clients.