LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — November 1, 2001, Page 7

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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 matters 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 decision has been rendered by the Dispute Resolution Panel or Review Panel shall be placed
in the custody of Concordia Historical Institute. It further provides that all such records shall be sealed
and shall be opened only for good cause shown and only after permission 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 encourages parties to
openly and candidly admit their offenses in a particular 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, whether by personal
testimony, deposition, written interrogatory, or sworn affidavit….
….d. Reconcilers and panels may divulge appropriate and necessary information
under the following circumstances, and the parties agree to waive confidentiality and
hold the Synod, reconcilers, panels, and panel members harmless for doing so: (1) when,
as part of its normal office operations, the Synod and its representatives consult with its
staff members or outside experts regarding particular issues or problems related to a case;
(2) when compelled by statute or by a court of law; (3) when an agreement or decision
has been contested or appealed; (4) when an action has been brought against the Synod or
its representatives as a result of its participation in a dispute resolution case; (5) when the
Synod or its representatives deem it appropriate to discuss a case with the church leaders
of parties; and (6) when the Synod or its representatives deem it necessary to contact
appropriate civil authorities to prevent another person from being harmed….
….f. While a matter in dispute is still undecided or while an appeal is
contemplated or pending, publicity shall not be given to the issues in the matter by any of
the parties involved, the reconcilers or panel members, or the Synod. The reconciler or
panel shall bring any violation of this Rule to the attention of the parties.

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