Conciliation and Arbitration for Ecclesiastical Entities
Ecclesiastical entities enter into financial and legal relationships among themselves, but also with businesses and natural persons. This is necessary to manage their daily affairs, as well as to further their own religious and/or social-welfare goals. Furthermore, lay and ecclesiastical organizations interact (in various ways) with the local communities. The communities may in turn have specific demands, and the organizations must respond in a manner consonant with their mission.
Misunderstandings and unforeseen circumstances may lead to conflicts in the interpretation of, or performance under, contracts executed to govern legal relationships involving one or more ecclesiastical entities. These may negatively impact the communities involved. Such conflicts may be resolved in a traditional courtroom, or they may be handled through ADR / Alternative Dispute Resolution. ADR may be more suited to such cases because it can take into account the particular needs of ecclesiastical entities, and the businesses and natural persons involved with them.
Ecclesiastical entities, businesses, and natural persons may run into the usual challenges in dealing with the traditional court system: delays in getting to trial; the niche nature of the entities and law to be applied; scant privacy protections. All of which discourages entering the traditional court system.
The CAEE Project (Mediation and Arbitration for Ecclesiastical Entities) is the brainchild of the AIA (Italian Arbitration Association) and Dikaios (the only Italian law firm certified as B Corp™), and was created out of an awareness of the challenges listed above. These two professional groups understand the importance and sensitive nature of dispute resolution between businesses and ecclesiastical entities.
The Mediation and Arbitration Project
Ecclesiastical entities and businesses are complex entities. Organized according to an internally devised structure that reflects their particular needs (with both parallel and overlapping functions), and which stretch across different jurisdictions (into civil jurisdictions in various countries, and in canonical law), these entities depend on the persons who take part in them (each with his or her own individual values and background).
These complex organizations require tools to simplify not just their operations, but the resolution of any disputes that may arise as well. After all, the consequences of their actions can reverberate across a broad swath of constituencies, from small towns to entire market segments. The persons involved in these legal relationships, furthermore, have needs and feelings that must be validated at the conflict-management stage as well.
The CAEE Project arises from that very need to facilitate individuals, businesses, and ecclesiastical entities in resolving civil disputes involving one or more ecclesiastical entities, by placing a neutral and secure space, as well as an efficient and confidential proceeding, at their disposal. In so doing, the dispute can be settled in a manner that embraces the opportunity to protect the relationship between the parties, and to see new value created from the resolution of their conflict.
AIA, as the institution that manages arbitration proceedings, and as appointing authority for mediators and arbiters, guarantees legal finality and confidentiality by appointing expert professionals who appreciate the special nature of relationships between the lay and ecclesiastical sectors.
Arbitration and mediation boards have been operating in the lay sector for quite some time. AIA has been establishing its presence in the field of commercial arbitration since the latter part of the 20th century. It has contributed to the development of arbitration and other alternative-dispute resolutions, and expanded their scope of application, especially in the current legal climate, to provide a way to handle the present crisis in our courts system. However, ADR techniques have yet to be applied to relationships between the lay and ecclesiastical spheres, to facilitate access to a conscientious and informed system of justice.
Dikaios regularly assists ecclesiastical and other nonprofit entities in managing their internal affairs (including disputes), and their relationships with the lay world.
AIA and Dikaios identified the first – and up until now, the only – Arbitration and Mediation project aimed at properly safeguarding the specific characteristics and interests of lay and ecclesiastical organizations, placing people at the heart of the process.
CAEE Project: Characteristics
The CAEE Project offers businesses and ecclesiastical entities an arbitration proceeding administered by an institution of clear renown. The project appoints experienced professionals cognizant of the needs and values that characterize interactions between lay and ecclesiastical organizations. A proceeding which, on the other hand, embraces the possibility of a preliminary attempt at mediation, aimed at settling the dispute through solutions proposed by the parties themselves.
Mediators and arbiters appointed by AIA who take part in CAEE are experts in civil and/or canonical law, as well as the characteristics of the ecclesiastical sector’s internal affairs, and the interactions between the lay and ecclesiastical spheres. These two “worlds,” albeit in special ways and to varying degrees, share interests and values that are assimilated into the Project.
CAEE requires that the arbiters appointed to a case have not only the expertise typically required of an arbiter, but that they further have a sensitivity towards the specific issues of the parties to the dispute, bearing in mind the businesses and the entities’ equity positions. Moreover, they will try, where possible, to preserve the contractual relationship presently in place, especially where broad-range interests of a community are implicated. The project also requires that the arbiters be amenable to the parties’ ability, over the course of the arbitration process, to find independent solutions (including through mediation) to their dispute.
This Project’s arbitration and mediation proceedings will be conducted in accordance with the 2016 AIA Arbitration Regulations (ordinary and documentary). These serve to safeguard privacy, impartiality, independence, professionalism, and competence of the arbiters, and to provide certainty on the costs of the proceedings. Arbiters and mediators involved in the proceeding may be appointed by the AIA Court of Arbitration (pursuant to Section 1.5 of the Regulations).
Any person, business, or ecclesiastical entity choosing to resolve their disputes by participating in this Project may submit the controversy to the Court of Arbitration. The Court will then assess each case with a view to reaching a decision that respects the (either individual or shared) needs and values of those persons, businesses, and ecclesiastical entities.
CAEE is founded on adherence to the following:
- Safeguarding parties’ rights.
- Respecting fundamental ethics and values during the proceeding.
- Arbiter competence, impartiality, and independence.
- Support from the arbitration institution to the parties before and during the proceeding.
- AIA’s oversight of the proceedings.
- Speed in rendering a ruling.
- Confidentiality and a duty of privacy from both the arbiters and the arbitration institute.
- Cost-containment for the proceedings.
- Assessment of the community impact of the conflict.
CAEE promotes transparency, streamlining, privacy, quality, and certainty of results in its ADR proceedings. These needs have been codified in the periodic updates to the AIA regulations.
The ADR culture itself, and the respect for fundamental values like those promoted by the Project will allow for increasingly clear and specific contracts between ecclesiastical entities and businesses. These will help avoid conflicts, or to resolve them in a successful and satisfactory manner, thanks to the inclusion of standard compromise clauses.