Religious Arbitration

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What Is Religious Arbitration?

Arbitration is a form of alternative dispute resolution. In a religious arbitration though, the parties can have their case decided by a religious tribunal instead of a secular court. In other words, your case is not heard by a judge or a jury. Instead, it is decided by a rabbi, a minister, or a private individual who provides religious services and advice. Religious tribunals are classified as arbitration bodies by the civil legal system. Arbitration decisions have as much binding effect on the parties as a court order.

Benefits and Drawbacks

Although religious arbitration is a sub-category of arbitration, the advantages and disadvantages of religious arbitration are similar to those of other arbitration. Generally, compared to a court trial, arbitration is faster, simpler, and cheaper. Arbitration also allows privacy because sessions are not open to the public like litigation. The arbitration process has more flexible rules, as the rules of evidence used in trial are not usually used in arbitration. In addition, there is a greater chance to settle the case in arbitration.

Conversely, these benefits of arbitration are the very drawbacks of arbitration. Due to the private nature of arbitration, there is less transparency.  Unlike litigation, parties are not subject to evidentiary and discovery rules. As such, the arbitrator may make a decision based on insufficient evidence that may lead to an unfair decision. Since arbitrators do not rely on precedent, there is less consistency. Overall, arbitration is faster and cheaper, but it lacks the protections of the court system.

When Religious Arbitration is Used to Decide Secular Issues

Proponents of religious arbitration support the proposition that religious arbitration is more conciliatory in nature and people of faith can work out their problems using shared values.  It may well be beneficial when religious tribunals are used to hear cases regarding religious matters.  Religious arbitrators and panels are indeed more specialized in religious doctrines than judges.  Judges are not equipped to consider a religious question.

Critics are concerned that a religious arbitration agreement shields a religious institution from liability. What’s more, a religious organization with stronger bargaining power, can stigmatize an individual member who may have a case against the organization. In the employment context, where your employer is a religious organization and you are associated with such religious community, the social pressure from your employer and religious community could potentially make it harder for you to speak up. 

Constitutional Restraints Make Court Intervention Harder

In religious arbitration, you have an added layer to have your case heard by a court – Religion. The First Amendment’s free exercise clause guarantees freedom of religion. The First Amendment’s establishment clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.

To comply with the First Amendment, courts often refuse to review religious arbitration awards. Such review may be viewed as an infringement of an individual’s fundamental right to freedom of religion. Or, the court’s review may violate the establishment clause because court’s confirmation of religious award may be viewed as an endorsement of a religion or unduly favoring one religion over another. If the court vacates the award, it may be viewed as preferring non-religion over religion. These constitutional restraints make it harder to get a court involved in a religious arbitration.

Know What You’re Giving Up and Contracts Law – Religious Arbitration Clause 

Whether you like it or not, when you agree to religious arbitration, you give up your right to have your disputes decided by a court of law. If you refuse to comply with an arbitration agreement, the other party may petition the court to enforce the agreement and compel the parties to arbitrate. In such proceedings, the first question is whether there was a valid agreement to arbitrate.

If there is a valid agreement to arbitrate, the basic principles of contract law apply. Parties who voluntarily entered into a valid contract are bound by the terms of such contract. As a result, where agreements to arbitrate are valid and enforceable, non-religious issues and disputes such as discrimination, wrongful termination, wrongful death, and frauds cannot be decided in courts but are decided by religious arbitration based on religious principles.

Religious arbitration clauses are being used by a variety of entities and businesses that serve the public, including substance-abuse programs, providers of vacation houses, flooring vendors, and even a sponsor of a fishing tournament. For secular issues, in particular, you should carefully consider the benefits and limitations of religious arbitration before signing the agreement to arbitrate through religious arbitration.

What Happens After Arbitration?

An arbitration award is supposed to be final and conclusive. However, in limited cases, you can appeal an arbitration award in court.  Courts may or may not review an arbitration award. When a court reviews a decision made by an arbitrator, the court will either enforce the arbitrator’s decision or overrule it.

Should I Consult an Attorney?

Religious arbitration can be a confusing institution apart from the courts or even secular arbitration. There are many factors to consider and a lawyer can help you determine how to proceed.

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Last Modified: 01-06-2016 10:51 AM PST

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