Monday, September 07, 2009




Christian organisational disputes often go very wrong as a result of failure to follow due process. Errors of process can result in escalation of small conflicts to a scale far beyond the original dispute; damaged relationships and reputations; divided organisations; guilty people escaping justice and innocent people being abused. The following principles will help reduce problems and ensure fairness. Most church leaders don’t have the time or interest to read a legal textbook to study due process, so the following summary can help.

Principles of fair due process should as far as possible be followed at early stages of a process and even on small issues, which helps to avoid escalation. Neglecting due process at an early stage tends to result in raised stakes, hardened attitudes, inflexibility, unwillingness to admit errors and authorities going through the motions of procedure after decisions have already been pre-judged.

1. Fair judgement
1.1. Disputes chaired and judged by persons with no conflict of interest in the dispute (e.g. relatives, other parties in dispute, financial beneficiaries, strong loyalties or other conflict etc);
1.2. Judge/chairman may not participate in a substantive debate, but only raise points of order, ask questions, clarify the standards of the authority and judge after hearing both sides.
1.3. Clear ruling with reasons given;
1.4. Fair hearing of both sides including freedom of speech during hearings and reasonable opportunity reply to accusations and object to procedural problems;
1.5. Principles of justice should be equally applicable to all in a similar situation (i.e. create precedent; right to know what principles/rules in decision).
1.6. Should a judge fail to follow due process, pre-judge a dispute, or otherwise use abusive tactics (e.g. insulting or intimidatory language, shouting, numerous speculative allegations) against a party, that judge must be replaced.

2. Clear roles and purpose
2.1. Right to know the purpose of the meeting beforehand (e.g. whether it is discipline, negotiation, arbitration, dispute resolution; friendly discussion etc).
2.2. Establish nature of dispute: e.g. personal, public morals, theological, class action.
2.3. Each persons role in the dispute should be known and people should not take on multiple roles in the same dispute (e.g. are they a mediator, a judge, a prosecutor, an advocate for a party; a witness; a disputing party etc).

3. Authority of the church, the Bible and the state
3.1. Immediate authority is the church authority constituted for the process, subject to higher church structures, rules and procedures; the Bible and the law of the state.
3.2. Where multiple church and/or para-church authorities are involved, the jurisdiction of each should be established.
3.3. The Bible is the final authority in all disputes on procedure and ethics.
3.3.1. Where disputed, this must be interpreted in line with the broader and historic church.
3.3.2. The interpretation used must be clear and publicly verifiable.
3.3.3. Follow Biblical process in Matthew 5 & 18 and 1 Timothy 5 and elsewhere.
3.4. All should comply with the law of the state and broadly accepted due process rights, as far as this does not involve disobeying the scriptures.
3.4.1. Where the meaning of the law is in dispute, an expert may advise or arbitrate.

4. Order of resolving issues
4.1. First clarify purpose, procedure, roles, objective standards for judgement and institutional arrangements (including jurisdiction).
4.2. Second deal with allegations in order of seriousness.
4.3. Third establish the facts of the case and the biblical ethics of the main issue under dispute.
4.4. Fourth establish the guilt or innocence of the parties.
4.5. Fifth the sanctions against the guilty party(s).
4.6. Sixth restoration of any offender or healing of relationships and feelings.

5. Fair procedures
5.1. Clear and consistent procedures as to how they will be handled;
5.2. Investigations focus on the main issue in dispute, rather than multiple secondary issues;
5.3. Procedures and structures once initiated and agreed remain to the conclusion of the dispute;
5.4. Where rules are deemed unworkable to follow, agreed due process should be cautiously followed to resolve the dilemma, change the rules or make an allowed exception – the rules should not simply be overlooked.

6. Witnesses, information, questions and records
6.1. Records kept of disciplinary meetings, to which parties involved should have access.
6.2. Right to bring witnesses to disciplinary hearings (including the right to make records of the proceedings).
6.3. Right to ask relevant questions and receive answers from the opposing parties and the authority.
6.4. Right to access information and records of the authority necessary to defend their rights.
6.5. Acknowledgement of receipt of correspondence.

7. Any confidentiality requirements must be:
7.1. Well justified; Clearly defined in scope of issues, duration and people involved; Freely agreed.
7.2. Limited by other issues such privilege to reasonably consult for advice; seek emotional counselling; inform a spouse; to avoid colluding in a cover-up of scandalous sin; protect others against serious threats; appeal a decision.
7.3. Limited by a procedure for fairly changing the scope, if possible with the consent or at least knowledge of the parties.

8. Right to fair defence and representation
8.1. Right to be represented by another party and to consult other parties for advice;
8.2. Right to a fair time to consider evidence presented by the opposing parties and collect defensive evidence before having to answer accusations, have judgement decided or made public;
8.3. Hearing of disputes and rendering of judgment within a reasonable time frame;

9. Authority beyond the initial judgement
9.1. Right of appeal
9.1.1. Appeals must be heard by someone other than that who made the original decision;
9.1.2. If appeals are not heard, reasons should be given for not hearing them.
9.1.3. Parties should not appeal to unbelieving authorities (1 Corinthians 6).
9.2. The findings of another church authority should be respected, unless:
9.2.1. The evidence and process has been independently reviewed and found to be in error.
9.2.2. The authority itself has since been discredited ethically or in governance abuse in a manner that casts doubt on its findings.
9.2.3. The findings were due to theological error or differences with the other authority.