Avoiding the Legal Pitfalls of Conflict, Mediation, and Discipline in the Church
Here are four safeguards your church can take to reduce its exposure to legal liability.
By Ken Sande
Every year in the United States thousands of church members sue their own church. Following are three examples of how churches get dragged into court:
A couple discovered that a teenage volunteer had inappropriately touched their daughter on a Sunday School outing. Fearing that this same person might have similarly wronged other children, they asked the church to thoroughly investigate the youth ministry. Thinking that the parents were laying the groundwork for a lawsuit and dreading the scandal that might arise if people learned of the incident, the pastor downplayed their concerns and tried to cover up the incident. After waiting for nearly a month, the mother mentioned the incident to her cousin, who had recently graduated from law school. Within 3 days the legal wheels began to turn, and the family named the youth worker, pastor, and church in a $1 million lawsuit.
A respected church member persuaded other members to invest thousands of dollars in a business venture. When the venture stalled and he refused to return their money, the investors complained to the pastor. The businessman rebuffed the pastor’s inquiries, so the elders mentioned the possibility of church discipline. A threatening call from an attorney, however, successfully intimidated the elders, so they simply asked the businessman to find a new church. He quickly chose a new flock to prey on, but he continued to bilk other members at the first church out of thousands of additional dollars. When these investors later discovered that their leaders had known of the businessman’s schemes and did nothing to warn them, they threatened to sue the church. The shepherds lost their credibility, the businessman ravaged the flock, and the “wolf” continued to prowl.
Two young women came to their pastor to confess they had both been sexually involved with a man they met through their church’s singles ministry. Both young women had contracted a serious sexually transmitted disease. Finding their confessions to be credible, the pastor approached the man to talk with him about taking sexual advantage of the two women. The young man angrily said that his personal life was none of the pastor’s business. When the pastor disagreed, the man retorted, “I’ll make this easy for both of us. I’ll find a new church and you can just forget about it.” The pastor later learned that the man had left his previous church for the same reason. Now he had moved on to a third church and was reportedly attending its college and career group. The pastor agonized over what to do. He wanted to protect other women from this man, but he had heard about pastors being sued for talking to other churches about former members.
Common Legal Actions Against Churches
These situations can easily trigger one of the following legal claims:
Negligent hiring, supervision, or retention of employees or volunteers.This claim involves an allegation of a failure to exercise reasonable care in the hiring, supervision, or retention of an employee or volunteer, with such failure causing injuries to a third person. These claims typically arise when a church employee or volunteer abuses a child.
Breach of fiduciary responsibility. A fiduciary is a person who has a special relationship of trust and responsibility (such as a counselor or pastor) toward another which gives rise to a duty to deal in good faith and solely for the benefit of the person being served. People often file these claims when a church leader misuses his influence, discloses confidential information, or fails to exercise reasonable care for church members.
Defamation.Defamation involves injuring a person’s character, fame, or reputation by false and unprivileged verbal or written statements.
Outrageous conduct (also known as “intentional or negligent infliction of emotional distress”). This action involves intentionally or recklessly causing severe emotional distress to another by conduct that a jury would find to be “extreme and outrageous.”
Invasion of privacy. The courts often base this cause of action on putting a person in a false light, or the public disclosure of private facts that are objectionable to a reasonable person and not of legitimate concern to the public.
These last three types of claims usually arise when church leaders acquire personal information during pastoral counseling or church discipline and disclose it to other people within or outside the church. When people charge church leaders with these wrongs, they force leaders into court, subject them to days of humiliating cross-examination, and leaders are shocked when juries penalize their churches with huge damage awards.
Preventing Is Better Than Prevailing
Even when a church wins in court, it usually pays an enormous price in terms of legal fees, lost time and energy, damaged reputation, distraction from ministry, and congregational confusion and dissension. Therefore, it is not good enough for a church to behave so well that it will prevail in a lawsuit. Instead, churches must act with such wisdom and integrity that will prevent people from filing lawsuits in the first place. Here are four simple steps your church can take to gain this level of protection.
1. Follow the Golden Rule
The wisest and most practical legal advice you could ever receive will not cost you a dime. You can find it in Matthew 7:12: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.”
People can avoid many of the conflicts that lead to lawsuits by consistently following this timeless principle. Do you like people to take your concerns seriously? Then take others’ concerns seriously. Do you like others to admit when they have been wrong? Then confess your wrongs. Do you like others to change behavior that may hurt innocent people? Then do so yourself.
If the pastor in the first example above (where a child was inappropriately touched during a church outing) had paused long enough to consider these simple questions, he would have served that family well and may have spared his church and himself an expensive and embarrassing lawsuit. Meeting with the parents and their daughter, listening compassionately, and expressing deep concern for what had happened to her could have changed the entire course of this conflict.
Since significant liability issues are present in these situations, the pastor needs to choose his words wisely and not blurt out a blanket confession. It is also wise to consult with his insurer and an attorney before admitting a failure on the church’s part or committing to any remedial action. But keeping the Golden Rule as his primary guiding principle will still be his best strategy for avoiding offenses that can transform a manageable problem into an excruciating lawsuit.
2. Build a Culture of Peace
Every church has a conflict resolution culture, which is a combination of a congregation’s habits, traditions, attitudes, and expectations for resolving conflict. This culture is often polluted by worldly values and customs, such as hiding differences behind a veneer of civility, giving up on difficult relationships, undermining opponents through backbiting or political maneuvering, or resorting to lawyers to force others to give into our demands.
The best way to change these attitudes and habits is to build a culture of peace in your church, where members are inspired and equipped to resolve conflict in a gospel-centered and biblically-faithful manner. A key step in building a culture of peace is to provide systematic teaching on biblical peacemaking to your congregation.
Experience shows that this kind of equipping is best done through a preaching series that is coordinated with Sunday School classes or small-group studies. This two-pronged approach allows people to learn key principles together and pray for one another as they put God’s Word into practice week by week (visit www.PeacemakerChurch.org for information on our Small Group Study on biblical peacemaking).
When leaders inspire and equip a congregation to respond to conflict biblically, members are far more likely to seek unity and reconciliation rather than to drag one another or the church into a courtroom. Thus a culture of peace not only reduces a church’s exposure to legal liability, but also strengthens its positive witness for Christ.
3. Obtain Informed Consent
Courts traditionally have given churches great deference on the exercise of their religious beliefs, including counseling, conflict resolution, and disciplinary activities. This historical deference, however, has declined in recent years. Simultaneously, the traditional reluctance most people have had toward suing a church has all but evaporated. As a result, people often threaten to sue churches that seek to carry out their God-given responsibility to rescue members from serious sin through pastoral care or church discipline. Courts have awarded some of these people shocking awards.
Courts award many of these damages because the churches did not clearly establish and communicate how they will minister to members with whom they are in conflict. As a result, a member can argue to a jury that the church’s actions (such as exercising redemptive discipline) are unreasonable and offensive, and the court needs to punish it through a large damage award.
A key element in preventing such claims and awards is to adopt clear and comprehensive policies that describe how your church will deal with conflict, and how it will exercise discipline over conflicted or unrepentant saints. Such policies will provide your church with one of the most effective defenses to any lawsuit: informed consent. To secure this defense, a church needs to be able to prove to a court that the person complaining of a wrong was fully aware of the church’s policies and procedures and knowingly agreed to be bound by them. As one court has written:
“When people voluntarily join together in pursuit of spiritual fulfillment, the First Amendment requires that the government respect their decision and not impose its own ideas on the religious organization. Under the First Amendment, people may freely consent to being spiritually governed by an established set of ecclesiastical tenets defined and carried out by those chosen to interpret and impose them: ‘The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it’ ” Watson v. Jones, supra.1
Although most churches have provisions in their bylaws about “exercising discipline pursuant to Matthew 18,” this kind of general statement is usually insufficient for today’s individualistic and antichurch legal climate. Therefore, it is essential that churches update their governing documents by adding language that preserves the church’s right to shepherd its flock and rescue wayward saints from sin. This added language needs to address issues such as continuing discipline after a member attempts to withdraw and informing your members and leaders in other churches of your disciplinary actions when needed to protect others from harm (e.g., when someone is seducing women in singles groups or defrauding senior members through misleading investment schemes).
Based on its experience in mediating and arbitrating hundreds of lawsuits against churches, Peacemaker Ministries has developed model Relational Commitments. These model commitments are designed so churches can clearly establish their policies on conflict resolution, divorce, counseling methodology, confidentiality, and church discipline (see sample document at www.Peacemaker.net/Risk_Management). By updating your governing documents with these types of provisions, you can strengthen your ability to restore straying sheep while simultaneously reducing your church’s exposure to legal threats.
4. Train Gifted Members as Mediators
A fourth safeguard for reducing your church’s exposure to legal liability and improving your ability to respond to conflict constructively is to recruit and train a team of gifted church members to serve your congregation as biblical mediators. Well-trained, easily accessible mediators provide several layers of legal protection for churches.
First, mediators are readily available to members of the church and can provide wise counsel in the initial stages of a conflict. This promotes reconciliation and prevents the delays and misunderstandings that can propel small issues into major confrontations.
Second, trained mediators are well-versed in practical, legally prudent mediation ethics and practices (such as using well-drafted procedural rules and agreements), and are less likely to mishandle a case and provoke parties into retaliatory actions. 2
Third, and most important, trained gospel-based peacemaking mediators are usually successful in resolving even the most complex conflicts. When parties are genuinely reconciled, there is no longer a need or desire to look to the courts for solutions.3
The Fruit of Gospel-Driven Risk Management
Earlier in this article I describe a situation where a man persuaded fellow church members to invest money in a business venture he was promoting. This is an all too common conflict in U.S. churches today, especially in our troubled economy. These situations typically result in fragmented congregations, discredited leaders, a flurry of fruitless legal actions, and irretrievable financial losses that obliterate many families’ life savings.
Such results are not inevitable, however, as was illustrated by a church that had deliberately implemented the four risk management steps outlined above. When the elders first became aware that several church members were embroiled in this kind of conflict, they promptly interviewed each investor and the businessman with whom people were angry, treating each person with respect, and giving everyone a chance to fully explain his perspective.
It soon became apparent that the businessman was delaying the sale of a piece of property until he could make a bigger personal profit, which kept him from returning promised profits to the investors. The elders pressed him to fulfill his promises to the investors by selling the property immediately, even though he would lose the opportunity to make a large profit for himself. When he resisted their involvement and threatened to go to another church, they reminded him that their disciplinary guidelines (which he had consented to) gave them the right to ask other churches in the community to encourage him to resolve his conflict with fellow believers.
The businessman consulted with an attorney. The attorney informed him that the church’s Relational Commitments were well drafted and gave the leaders the right to do what they said they would do if he failed to work with them to resolve the problem. Seeing he could not easily escape from the situation, he returned to his church and agreed to work things out.
The elders then asked a team of trained mediators to work with the businessman and the investors. Over the next few days, God worked through them to bring the businessman to a point of genuine repentance. As a result, he willingly agreed to sell the property and fulfill his commitments as quickly as possible. Since the conflict triggered gossip and division throughout the congregation, he agreed to make a public confession to speed healing and reconciliation. At the end of the confession, the Holy Spirit prompted the most strident investor to come forward and confess how her bitterness and anger had aggravated the situation. As these two individuals publicly forgave each other and embraced, the entire congregation saw the reconciling power of the gospel lived out before their eyes.
By living out some basic biblical principles on peacemaking and risk management, this church turned a volatile and potentially divisive conflict into a far-reaching ministry opportunity. The actions of the mediators restored unity in the congregation, fulfilled justice, people developed an increased respect for the church leaders and the mediation team, and the witness of the church spread in its community. As James 3:18 promises, “Peacemakers who sow in peace raise a harvest of righteousness.”
1. See, e.g., Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 774 (Okla. 1989, emphasis added); Hester v. Barnett, 723 S.W.2d 544, 559-60 (Missouri 1987); (“The discipline the religious body may impose ... must be within the terms of the consent.”)
2. For samples of procedural rules and ethical standards that have been tested in hundreds of cases, see www. Peacemaker.net, “Get Help With a Conflict.”
3. Information on training in biblically based conflict coaching, mediation, and arbitration is available at www.Peacemaker.net.