RIGHT REJECTS RELIGIOUS ALTERNATIVE DISPUTE RESOLUTION

©2011 jbjd

Over the past couple of days, dozens of internet sites with a political bent decidedly to the right have erupted with a collective ‘whoa is us (read, U.S.)’ cry that the interplay between the courts, and Alternative Dispute Resolution (“ADR”) practice carried out according to principles enshrined in religion; signals we are allowing religious fanatics to take over our Republic.  And they are up in arms at that American prospect.

The focus of their ire is a case in FL involving a business deal (contract) gone bad.  Evidently, the parties had agreed in advance to resolve any disputes that might arise under their contract, in some type of ADR which would be conducted according to Sharia law.   Seems one of the parties now refused to live by the terms of that agreement, denying the other the benefit of their bargain.  The aggrieved party asked the court to memorialize the terms of the contractual agreement to arbitrate in an Order to Enforce the Arbitrator’s Award. (I have been unable to find the original contract between the parties, or any documents other than the court order compelling the parties to abide by the terms of that contract.)  A picture of the court order can be  found on AtlasShrugs. Sharia Becomes Law in Florida

Parties routinely rely on the courts to resolve contract disputes.  So, asking the court to enforce this contractual dispute alone, is hardly newsworthy.  And, many contracts contain a provision to settle prospective disputes arising under the contract, outside of the court, through a specific process using rules agreed upon by the contracting parties.

ADR seems unlikely to be the cause of such consternation.

The Cornell University Law School’s Legal Information Institute (“LII”) defines Alternative Dispute Resolution is “[a]ny method of resolving disputes other than by litigation.  Abbreviated as ADR.  Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them.  Arbitration and mediation are the two major forms of ADR.”  http://topics.law.cornell.edu/wex/alternative_dispute_resolution

In other words, parties to a contract are entitled to the ‘benefit of their bargain.’

Here is a pamphlet which describes court connected ADR services in Massachusetts.  http://www.mass.gov/courts/formsandguidelines/ccadr0601large.pdf This points out some of the advantages of using ADR to settle disputes, including process control and enforcability.

Process Control

In most court-connected dispute resolution processes except for dispute intervention, the parties have more control over the process. They may decide where and when to hold the proceeding, which methods to employ, who will be the neutral, which issues will be addressed, when each party will have a
chance to speak and whether the outcome will be binding or or nonbinding. With court connected dispute resolution, the parties can agree to a mutually acceptable resolution, thereby avoiding the uncertainty related to trial.

Enforceable Agreements

A mutually accepted agreement reached through mediation may be written and signed by both parties. The agreement is usually enforceable as a binding contract but is sometimes subject to judicial review. Other court-connected dispute resolution processes may also provide for submission of accepted written terms of settlement to the court.

Again, contracting parties are entitled to the benefit of their bargain.

Florida has enacted several ADR statutes.  For example,

682.03. Proceedings to compel and to stay arbitration (1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.  Id.

So let’s say, parties to a business transaction in FL contract to settle all disputes arising under this transaction through binding arbitration, and that the Arbitrator will be chosen through the American Arbitration Association (“AAA“).  Subsequently, a dispute arises but one party to the contract refuses to undertake such arbitration.  Under this law, the offended party has the right to petition the court for an order to proceed to arbitration under the rules previously agreed to by the contracting parties.  Because contracting parties are entitled to the benefit of their bargain.

And this is what appears to have taken place in the FL case that has sparked this outcry from the right.

So what is it about this case that makes it special?  Here, those mutually agreeable rules for ADR were based in religion.

Now, what heretofore existed as a benign contractual provision has evoked headlines like Florida judge orders Muslims to follow sharia law, against their will; and Say What!?! Florida Judge Rules A Case Should Proceed Under Sharia Law; and SHARI’A (Islamic) LAW now being practiced in Florida. Yes, FLORIDA!.

But choosing to conduct ADR by using agreed upon religious standards is really not that unusual.

Parties wishing to arbitrate their disputes “using an alternative dispute resolution process that is biblically faithful” can get help from Peacekeeper Ministries’ The Institute for Christian Conciliation and conducted under Christian Conciliation Rules, whose decisions are judicially enforceable.

The arbitrators’ decision shall be legally binding on the parties, except as provided by law, and may be filed as a judgment and enforced by a court of law. It shall be the sole responsibility of the parties to file a decision with the court and, if necessary, to have it enforced.

Beth Din of America , providing services “[f]irmly anchored in the principles of halacha (Jewish law),” explains solutions they are able to achieve for the parties are “enforceable in civil courts as they conduct proceedings “in a manner that is consistent with the requirements of secular arbitration.”

Prior to having a case heard by the Beth Din, litigants are required to enter into a binding arbitration agreement. The Beth Din conducts its proceedings in a manner that is consistent with the requirements of secular arbitration law, so that the rulings of the Beth Din are legally binding and enforceable in the secular court system.

Nevertheless, it appears that editors of the organization calling itself Congress.org, a project of the CQ-Roll Call Group, the largest news organization on Capitol Hill, had never heard of ADR grounded in religious beliefs before the present FL case involving Sharia.  Consistent with their stated mission “in facilitating civic involvement,” they incorporated their unreasonable interpretation of these events in FL into a letter posted for use by constituents to send to their state legislators throughout the country, urging laws that would prohibit U.S. courts from adopting Sharia law!  (Talk about facilitating civic ignorance…)  The letter asks officials rhetorically whether civil courts engage in the practice of remanding cases between Christians to the Christian churches for resolution, reasoning, therefore, it makes no sense to order matters involving Muslims to Sharia law.  (Such rhetoric stupidly implies that the reason the court in FL ordered arbitration to be conducted under Sharia was that the contracting parties were Muslim, rather than that they had both contracted to resolve their dispute under Sharia law in the first place!)

Letters To Leaders
All messages are published with permission of the sender. The general topic of this message is Women’s Issues:
Subject:
ExampleTo:
Governor Christine Gregoire
Rep. Ross Hunter
Rep. Deb Eddy
Sen. Rodney TomMarch 19, 2011

The case of Mansour v. Islamic Education Center of Tampa, Inc., (Case No. 08-03497, 13th District Court for Hillsborough County, Florida) is an example of Sharia law being imposed in the U.S. Paragraph 2 of the Court’s dispositive Order is a quote originally from the Christian Bible that says if someone sins go to that person to discuss it first, and if they do not listen then bring another witness. If they still do not listen, bring it before the church and (basically) excommunicate them from the community if they remain obstinate in sin. The Christian Bible also says it is shameful to have to go to court and sue fellow Christians, not being able to resolve conflicts within the church community which is the body of Christ. Mohammad rewrote (dictated actually as he was illiterate) the Bible in the 7th Century from what he knew of the Bible; THAT is why the Quran has similar-sounding passages.

Even so, do the civil courts remand cases between Christians to the Christian churches for resolution? No, the civil law upholds ethical BEHAVIOR and punishes unethical BEHAVIOR. The case herein is not asking the Court to interpret Islamic doctrine but to reasonably decide a contractual dispute. How can a civil judge tell the parties to figure it out for themselves as if U.S. law did not govern contractual obligations? The Judge is basically saying that Sharia law governs contracts between Muslims. That Judge is an enabler and enforcer of Sharia law and should be taken off the bench.

Please be vigilant in eliminating this kind of judicial betrayal and pass legislation prohibiting the use of Sharia law as an alternative to U.S. law.

As you can see, this letter posted by Congress.org evidences an ignorance of the accepted role religious arbitration already plays in ADR, throughout the country.  On that basis, I extrapolate that the other pundits incensed over the FL court order in the binding arbitration conducted according to mutually agreed upon Sharia law, could be similarly unaware, religious based ADR is nothing new and, therefore, are opposed to the use of Sharia law to decide this dispute in FL, and to the use of the courts to enforce an arbitration award, on the basis of ignorance of the facts and commonly accepted legal practice.

Or maybe they just hate Muslims.

9 Responses to RIGHT REJECTS RELIGIOUS ALTERNATIVE DISPUTE RESOLUTION

  1. TeakWoodKite says:

    jbjd, exellent article on ADR, but I strongly disagree with you.

    You state you can’t find any more documantation than the order. Then you show a letter from from a “news orginization” as an example what exactly?

    Was anything in the the letter incorrect in anyway?
    It doesn’t occur to you that Sharia law is an abobmination and has no place anywhere in the US legal system?

    And because I’m of that opinion, I hate Muslims? The facts are contray to your position. The parties were not in agreement as to the alternative resolution from outset. I can just see it now…Sharia justice in the form of stoning a woman to death for being raped. That is what you are endorsing?

    I do not deny that it occurs in the religious context, but it wrong as it is a civil matter. Just because the context was centered on a Mosque make little difference when the parties are NOT in agreement on the format of the ADR.
    Best to you and yers. Hope all is well.

    TeakWoodKite: Hello again! Wow, judging by your level of confusion, I have a lot of clarifying to do.

    The only documentation I could find with respect to the court documents or contract between the parties that was the basis for the ADR order, was the actual written order. So, I based my analysis on the clear language of that order and, my research on ADR. Any other anecdotal information I read which was repeated on dozens of sites, failed to cite to original documents or other verifiable sources.

    I showed the letter from that so-called “news” source so as to emphasize the level of ignorance concerning both ADR and, the court’s limited involvement in Sharia based ADR. In fact, as my article states, while the courts will examine any methodology which was the contractually agreed upon basis for the ADR; their analysis only goes so far as to determine whether the contractually agreed upon methodology was followed, and not to second guess the arbitrator’s ruling.

    The letter contains many errors of interpretation, in addition to the ones already cited. For example, the writer asks, “How can a civil judge tell the parties to figure it out for themselves as if U.S. law did not govern contractual obligations?” The courts do this all the time. That is, parties wishing for the courts to determine in the first instance whether they have engaged in a lawful contract, can petition the courts for such finding. (For example, does the contract require an illegal act. If so then, the contract is void. http://www.lectlaw.com/files/bul03.htm)

    And therein lies the answer to your other rhetorical question as to my opinion of other aspects of Sharia law, which fall outside of the scope of the present contract dispute. In most states, murder, mayhem, or inflicting serious bodily injury are prohibited criminal conduct. As such, any conduct containing an agreement to be bound by ADR which would impose such penalties would be void, as a matter of law.

    FYI, individuals cannot consent to becoming victims of such crimes. That’s why in Oregon the law specifically permits physicians to prescribe medication to be used by patients to commit suicide. (Oregon Death with Dignity Act) Otherwise, such assistance would be criminal. Because the harm done to an individual is actually considered to be done to the ‘state.’ Thus, the state becomes the ‘named’ Plaintiff in a prosecution against the wrongdoer Defendant; the injured party becomes the state’s witness to the conduct.

    Finally, my opinion of Sharia is immaterial to this analysis. I did not contract to resolve a dispute under that law. ADMINISTRATOR

    • TeakWoodKite says:

      Hey jbjd, it’s all good, and I am in no way confused.

      “does the contract require an illegal act”. That is a matter to be decided in a US Court of Law not a Sharia tribunal of ANY sort. Period.

      That goes for Christian, Jewish or Klingon as well.

      ADR with any religious format, to the extent that Islam is a religion, is not “civil” law by definition. ergo the contract may or not have been legally binding.
      “but does the contract require an illegal act”, if one party objects to abritration in a non civil format it should be end of discussion on the judges part and that is my point. The illegal act was the judge’s opinion.

      I am not a lawyer, but I certainly understand your well drawn conclusions, based on your citations.
      What I take exception to, and it is in no way personal, is your assertion that the letter you cite was factually incorrect. Was it? If so what part? If I happen to be of the opinion that individuals who composed the letter have a valid legal position, as well as being factual correct in their statement, that does not make one guilty of “facilitating civic ignorance”.

      Civil means civil. If a contract stipulates arbitration via Sharia, then the contract was and is not legal, out of the gate, at least that part of it pertaining what forum any disputes would be resolved.
      It enforces a religious based opinion on a civil matter before the state.
      “Or maybe they just hate Muslims” is not relevent and a cheap shot. (LOL) or are you saying that all Muslims only live by Sharia and are not subject to the civil laws of this nation, if by contract they stipulate otherwise?
      On a related note…. for sometime I had have been looking for cases decided by SCOTUS regarding any aspect of Sharia in US courts…do you know of any?
      I can’t find much resource wise.

      The underpinning of my arguement matters not if the SCOTUS has ruled, and I would adjust my position accordingly.

      Best to you and yours.

      TeakWoodKite: It just so happens, Salon posted an article yesterday about that FL case. http://www.salon.com/news/islam/index.html?story=/politics/war_room/2011/04/02/sharia_florida_case They seem to have more details about the parties and the terms of their contract. Maybe reading that will aid your understanding of the issues involved.

      The reason I wrote that anti-Muslim sentiment could explain the furor, is this. I had not previously encountered such spirited dissent from so many corners, for ADR based in religion. Nor had I witnessed such violent objection to contracting among private (competent) parties.

      On motion by a party, the court absolutely will ‘peak’ at the contract so as to determine whether it is legally binding on the parties. And, it will ‘peak’ at the ADR process to ensure the contractually agreed-upon method of arbitration was followed. But it will not second guess the ruling of the arbitrator. ADMINISTRATOR

      • TeakWoodKite says:

        Is it your position that being anti-muslim and anti-Sharia are one in the same?

        Am I correct in thinking your saying the ruling of an arbitrator is grounded in US law?

        As for contract law, it governed by US law and not Sharia.
        Any ideas on where one might SCOTUS cases regarding religious ADR or Sharia specifically?
        Hope you have a great week and thanks for the lively exchange. :)

        TeakWoodKite: No; the ruling of the Arbitrator chosen by the contracting parties to resolve their dispute, who they contracted to resolve their dispute according to Sharia, presumably is an expert in Sharia, and not U.S. law.

        Again, the only issues with respect to U.S. contract law are, is this a valid contract? And, if one of the parties tries to avoid the requirements of the contract, s/he can submit a motion to the court asking to nullify the contract on the grounds, it is void as a matter of (U.S.) law, for example, because of fraud; misrepresentation; or mistake.

        As for finding cases involving religious arbitration, well, here is an interesting article from the Columbia Law Review which comprehensively addresses many issues that arise when civil courts review contractual religious arbitration. http://www.columbialawreview.org/assets/pdfs/107/1/Grossman.pdf ADMINISTRATOR

        • TeakWoodKite says:

          Thanks for the link, jbjd

          My point is that any arbitration is done under US law not Sharia or any other religious context.
          :).

          TeakWoodKite: Okay, I think we are on the same page now. Yes; U.S. contract law but Sharia ADR.

          Let me know what you think of that law review article, or if it leads you to any additional interesting cases. ADMINISTRATOR

          • TeakWoodKite says:

            Hey jbjd, I have been reading the link and it brought me to SCOTUS cases that confront “the Religious question”.

            It appears that US legal precedent has established a line between civil matters before the courts and religous aspects, Inso far as the matter contains religious elements, these can not be decided by a civil court and are in many cases refered to the existing relevent religous “bodies” for an outcome.

            As it should be, the courts may make no ruling regarding religion. This is where the problem has it’s roots. (or cure, depending on ones position)

            It appears that in the Florida case, this was besides being a civil contract dispute, where both parties entered into an binding arbitration agreement and stipulated the terms agreeable to both parties, the Judge did not have much of a choice. Unless a defect was found as a matter of civil law, he could not entertain any arguements about the merits of Sharia law, as that would raise “the religious question”.

            I am still of the opinion that entering into a civil contract with binding religious arbitration is unconstitutional. Where the law is in conflict with religious doctrine, it is the civil law that be the final forum.

            The link was useful and I thank you. It took awhile to get back to you as my sane half has me painting every room in my house….

            TeakWoodKite: I am so glad you had a chance to review the links I found which I thought might help you to understand my position. Being a staunch advocate for the clear delineation between matters of church, and matters of state; I did not reach without strong legal grounding my conclusions that the FL contract dispute appeared to survive Constitutional scrutiny. But even though, in this case, I was right; I could have been wrong; and so, I welcome your loyal opposition! ADMINISTRATOR

  2. Sebaneau says:

    http://www.islamicpluralism.org/1756/the-canadian-front-against-radical-islam

    We hold to the traditional Islamic guidance, dating to the Prophet Muhammad himself, commanding us as Muslims to accept the laws and customs of non-Muslim countries in which we may live. We also affirm the similarly well-established Islamic principle that shariah cannot be imported into non-Muslim territories. We have produced an extensive study of shariah ideology in Western Europe and have concluded that the Muslims of

    Britain, France, Germany, the Netherlands, and Spain do not want shariah. In our view, the rejection of shariah extends to so-called Islamic mediation and arbitration, since we cannot be assured that such procedures will be governed by sensible and moderate clerics.

    This perception is reinforced by a remarkable incident in the American state of Florida, where a local magistrate, Judge Richard Neilsen, ordered at the beginning of March that shariah-based arbitration should be recommended by the state authorities in a civil dispute between a Shia mosque, the Islamic Education Center of Tampa, and four members removed from its board of trustees. An Islamic scholar in Texas decided that the quartet had been dropped from the board unjustly. In a ridiculous display of patronizing rhetoric presumably intended to flatter the Muslims and assure them of his goodwill, Judge Neilsen commented, “Islamic brothers should attempt to resolve a dispute among themselves. If Islamic brothers are unable to do so, they can agree to present the dispute to the greater community of Islamic brothers within the mosque or the Muslim community for resolution.”

    The Shia mosque, however, rejected the adoption by the American court of shariah guidelines in their dispute, arguing through their attorney, Paul Thanasides, as follows: “The mosque believes wholeheartedly in the Koran and its teachings… They certainly follow Islamic law in connection with their spiritual endeavors. But with respect to secular endeavors, they believe Florida law should apply in Florida courts.” The Shias in Florida are correctly, in my opinion, obeying the directives of the Shia marja (a cleric worthy of emulation), Grand Ayatollah Sayyid Ali al-Husseini Sistani of Najaf, Iraq.

    http://www.islamicpluralism.org/1756/the-canadian-front-against-radical-islam

    Sebaneau: Welcome to the “jbjd” blog. Your comment, while arguably offering a broader perspective of the voluntary application of Sharia to resolve disputes between contracting parties, fails to provide sufficient facts on which to alter my initial opinions as to the specific FL case which is the subject of this article. That is, if contracting parties agree to use Sharia, regardless of the proscription against such practice described in the writings you linked; then, the ruling of the court only memorialized the prior agreement of the parties.

    In other words, people outraged by this ruling need to direct their objections not to the court but to the contracting intention of the parties to resolve their dispute through Sharia. ADMINISTRATOR

  3. […] RIGHT REJECTS RELIGIOUS ALTE&#82&#78&#65TIVE DISPUTE RESOLUTION « jbjd […]

  4. TeakWoodKite says:

    Ran out of threadjbjd, so continued from above…

    I can appreciatte that being correct on a point and that my admitted lack of legal knowledge would keep me as opposed to any use of religion in civil law.

    The “religious question” is a strong element in Florida case’s judicial review, especially when contratual abritation stipulates the use religious doctrine.

    The reason I object to religious arbitation is grounded in “seperation of church and state”. That is a Constitution mandate no?

    To say that the Founders and consequent generations, did not struggle with this issue and attempt to find a balance of civil law and one’s religious life or disent of it, would not be honest.

    I just wondered if you had a view in this regard. It strikes at the core of having any religion and Sharia in piticular, as an avenue of civil justice when viewed as Constitutional matter.

    TeakWoodKite: Before I answer, I want to stress this point, which might not be at issue in our exchanges but, appears to remain unclear in the minds of others.

    When we use the word “Sharia” in relation to contract law, we need to keep in mind, we are not talking about contracting to carry out an unlawful act, that is, an act which is otherwise prohibited under either civil or criminal law.

    So now, give me an example of conduct allowed under Sharia as the standard for binding arbitration voluntarily contracted to by the parties; which you have in mind is contrary to the Constitution. And I will discuss, okay? ADMINISTRATOR

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