LCMS Convention Workbook St. Louis, Missouri — 2004, Page 320

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320 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

which District’s president they will receive ecclesiastical supervi-
sion. This decision is consistent with Bylaw 2.43 which, while it
addresses the responsibility of District Presidents for maintaining
the roster of the Synod, specifically mentions workers called by
“{nstitutions which relate to” a District as holding membership in
that particular District. While an RSO formally relates to “the board
of the Synod to which the organization desires to relate” (Bylaw
14.03 c), the Commission assumes that it will also relate most
closely to that District to which it is geographically most proxi-
mate. Non-geographic Districts are excluded from consideration by
Bylaw 2.41 d, which allows membership in non-geographic Dis-
tricts by persons serving entities other than a congregation or Dis-
trict only under specific conditions.

(Note: The Commission instructed that its secretary write a let-
ter to the Commission on Structure calling its attention to the need
for further clarification in the Bylaws in this regard.)

Adopted Nov. 1, 2001

Questions re Dispute Resolution Process (01-2235)

In an October 25, 2001, letter a pastor involved in a dispute res-
olution process asks for “an official] understanding of certain ques-
tions” that pertain to the process, explaining that two of the ques-
tions “cover a further explanation of terms used in Bylaw VIII’ and
that the other two “may or may not be an unwritten part of every
Constitution calling upon all parties to deal with one another in an
atmosphere of fairness.”

Question 1: I ask for your understanding of the term “informal”
as used in Bylaw 8.05. A further extrapolation on this point would
be that if a party in a matter of dispute will not meet without wit-
nesses, then has the matter gone from “informal” to “formal”?

Qpinion: Bylaw 8.05 differentiates between “the formal recon-
ciliation process” which is delineated in succeeding bylaws and
“Informal Efforts toward Reconciliation” referred to in its title. It
defines informal efforts as “meet(ing) together, face to face, in a
good-faith attempt to settle (the) dispute.” The parenthetical bibli-
cal reference to a specific verse of the Matthew 18 process further
supports this understanding: “If your brother sins against you, go
and show him his fault, just between the two of you. If he listens to
you, you have won your brother over” (Matt. 18:15 NIV). When
such informal, face to face efforts have been inadequate, the parties
are to be directed to engage in further such efforts before the formal
reconciliation process that involves other persons, e.g., witnesses,
can begin (Bylaw 8.07 c).

Question 2: Bylaw 8.21 b calls on members and agencies of
Synod to participate in reconciliation efforts. If a person does not
participate, does the reconciler have power to act upon that refusal?
What, if any, action or actions can be taken in such a matter?

Opinion: Bylaw 8.21 b requires that “any member of the Synod,
officer of a congregation, or officer of any organization owned or
controlled by the Synod shall, when called upon by the Dispute
Resolution Panel or Review Panel to do so, testify or produce

records related to the dispute.” In doing so, it speaks specifically

to dispute resolution panels and does not include the preceding rec-
onciliation process per se.

Bylaw 8.07 e, however, does provide also to reconcilers the au-
thority to obtain the participation of persons who have a contribu-
tion to make to a reconciliation effort: “The reconciler may draw
upon persons and resources which the reconciler deems necessary
to assist in the reconciliation process.” Failure or refusal to partic-
ipate on the part of members of the Synod, officers of a congrega-
tion, or an officer of any organization owned or controlled by the
Synod falls short of the stated intent and spirit of the dispute reso-
lution process to be “the exclusive and final remedy for those who
are in dispute” (Chapter VIII Preamble, paragraph 2), a ministry of
reconciliation that is “one of the church’s foremost priorities” (Pre-
amble, paragraph 4). In the interest of this process and “for the sake
of the Gospel, the church should spare no resource in providing as-
sistance” (Preamble, paragraph 1). Failure on the part of members
or officers of the Synod or its organizations would also be a failure
of membership responsibility in the Synod, whose “Constitution,

2004 Convention Workbook

Bylaws, and all other rules and regulations...apply to all congre-
gational and individual members of the Synod” (Bylaw 2.39 a).

Question 3: Is there any understanding among us that circum-
stances are placed on hold while a dispute is in the process of being
reconciled or resolved? What if a distribution of funds and/or a
monetary reward are at issue? May one party take action during the
process that makes a recovery of funds unlikely or impossible?

Opinion: There is no bylaw that deals with this issue directly.
The Commission notes, however, that Bylaw 8.01, by prohibiting
termination of membership in the Synod in order to render the pro-
visions of the dispute resolution process inapplicable, speaks indi-
rectly to this issue. In addition, the 1995 convention of the Synod
directed that Rules of Procedure be developed to enhance the op-
eration of the Dispute Resolution Process. Rule 45, “Decisions,”
reads in part:

'_b. The panel may award any remedy or relief that it deems scrip-
tural, just, and equitable, and within the scope of the issues defined by
the panel, including, but not limited by the remedies requested by the
parties. Any monetary award in a decision should clearly set forth the
party that is obligated to pay such monetary award and the manner in
which it is to be paid.

In the event that a congregation is a party to the dispute, Rule 6,
“Congregation’s Right of Self-Government,” provides:

The congregation’s right to self-government shall be recognized. How-
ever, when a decision of a congregation is at issue, a Dispute Resolution
Panel may review the decision of the congregation according to Holy
Scriptures and shall either uphold the action of the congregation or advise
the congregation to review and revise its decision. If the congregation does
not revise its decision, the other congregations of the Synod shall not be re-
quired to respect this decision, and the District involved shall take action
with respect to the congregation as it may deem appropriate.

Question 4: When a matter goes to dispute resolution, may a party
that has heard a confidential statement disclose same? May one use
confidential statements to clear his own name? If confidential mat-
ters may be disclosed, is there someone who has the power to judge if
they are germane to the matter in dispute? If the Synod follows its
procedure and places records with the Concordia Historical Institute,
is not the Synod also indirectly disclosing a confidence?

Opinion: Bylaw 8.21 h provides that all Dispute Resolution
Panel or Review Panel records of disputes in which a final deci-
sion has been rendered by the Dispute Resolution Panel or Review
Panel shall be placed in the custody of Concordia Historical Insti-
tute. It further provides that all such records shall be sealed and
shall be opened only for good cause shown and only after permis-
sion has been granted by a Dispute Resolution Panel, selected by
blind draw for that purpose.

In addition, Rule 26 of the Rules of Procedure, “Confidentiality,
Publication of Decisions, and Records of Panels” addresses the
question. It reads as follows:

26. Confidentiality, Publication of Decisions, and Records of
Panels.

a. Because of its biblical nature, Christian conflict resolution en-
courages parties to openly and candidly admit their offenses in a partic-
ular dispute. Thus, Christian conflict resolution requires an environment
where parties may speak freely, without fear that their words may be
used against them in a subsequent legal proceeding. Moreover, because
of the Synod’s commitment to keep parties out of court, reconcilers
serving on behalf of the Synod would not do so if they believed that
any party might later try to force them to testify in any legal proceeding
regarding a synodical dispute. Therefore, all communications that take
place during the dispute resolution process shall be treated as settlement
negotiations and shall be strictly confidential and inadmissible for any
purpose in a court of law, except as provided in this Rule.

b. This Rule extends to all oral and written communications made
by the parties or by the reconcilers and panels, and includes all records,
reports, letters, notes, and other documents received or produced by the
reconcilers and panels as part of the conciliation process, except for
those documents that existed prior to the synodical dispute resolution
process and were otherwise open to discovery apart from this process. It
is understood that the parties shall not compel the reconcilers or the
panel members to divulge any documents or to testify in regard to the
dispute resolution process in any judicial or adversarial proceeding,