March 20, 2011

©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:
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.

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