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Mo. convention lawyer skeptical of proposed mediation attempt

JEFFERSON CITY, Mo. (BP)–A judge has instructed Missouri Baptist University and the Missouri Baptist Convention to contact a retired judge to attempt to mediate their dispute.

Cole County Circuit Court Judge Thomas Brown’s instruction was issued during an Aug. 7 hearing in response to a motion filed by the university calling for a “voluntary settlement” through mediation.

Brown said he realized that non-binding mediation might not produce a settlement, since the college has not indicated what, if any, compromise proposal it has in mind. Still, the judge said it was worth trying.

Brown directed the parties to contact retired Judge Robert Russell in Sedalia, Mo., who often handles mediations.

The motion proposed mediation only for the college, and not for four other breakaway state Baptist entities: Windermere Baptist Conference Center, Missouri Baptist Foundation, The Baptist Home retirement facility and Word & Way newsjournal.

The five entities changed their corporate charters in 2000-01 to stop the Missouri Baptist Convention from electing their trustees. When the five entities resisted a Christian arbitration proposal from the convention for over a year, the convention finally filed a declaratory judgment petition in court on Aug. 13, 2002, contending that the charter changes violated Missouri law. All five entities have vigorously litigated the case since, filing numerous procedural motions which have delayed the proceedings.

Brown indicated that he did not want the attempt at mediation to cause any delay in the next steps in the case, so he set a status conference on Sept. 5 by which time the five entities should have filed answers and motions in response to the convention’s petition for a declaratory judgment.

Lawyers for the convention called the motion a “publicity stunt” because the college has never in four years offered to restore its former charter, which they said would be essential to any “voluntary settlement.”

In a media release to the Word & Way newsjournal, the college legal counsel said part of the purpose for the motion was to inform convention messengers of the “university’s desire” to “serve all Baptists” and to “work with all Baptists to get this mediated.”

“The media story proves that the mediation motion is just a publicity stunt,” MBC attorney Michael Whitehead said. Mediation, he said, “is for cases likely to settle. For this case to settle, the college would have to offer to restore its former charter, with convention election of trustees. The college has never been willing to offer this, so there is no way this case can settle by mediation. It would only delay the decision by the judge, and the college has delayed enough. We need a decision.

“We have always been willing to talk,” Whitehead said. “MBC offered to arbitrate this case with Christian arbitrators in 2001.”

An Aug. 3 Word & Way story acknowledged that the convention first proposed Christian arbitration in 2002, shortly after the five entities changed their charters. The story also stated that the convention’s executive board withdrew the arbitration offer after the circuit court action was filed, because arbitration after years of costly litigation would only delay a legal decision and “would be poor stewardship” of time and resources.

The Missouri convention’s executive director, David Clippard, said that was one sentence in the Word & Way’s story he agreed with. “We believe that the ship called ‘arbitration’ sailed from the dock in 2002 when the breakaway entities again rejected our offer for binding Christian arbitration. To go to secular mediation or arbitration now, after all the parties have spent millions of dollars on this legal question (that could have been avoided long ago) would be a terrible waste of time and money. We don’t need a latter-day compromise that still leaves open the legal questions about the convention’s rights in relation to the agencies. These questions will keep coming up again, just like Shorter College and Belmont University in other states, if we don’t get a clear ruling on the law now.”

Shorter College in Rome, Ga., attempted to break away from the Georgia Baptist Convention, but the Georgia Supreme Court voided the attempt in 2005. Belmont University attempted to break away from the Tennessee Baptist Convention, but the convention voted in a special session in May to reject the attempt and to seek to recover the right to elect trustees of the breakaway college.

Whitehead noted that two insurance companies for the breakaway Missouri entities have asked about mediation in the past three years, and the convention has always been willing to discuss the issues. The most recent effort was in January 2006, when the college insurer offered to provide a mediator from another state. Whitehead’s investigation uncovered the fact that the proposed mediator was a former board member when a college in another state broke away from its state convention. “We rejected that name due to possible bias, but we have never said ‘never’ to the college insurer. They have to be fair,” Whitehead said.

Court rules permit a judge to appoint a mediator if the parties think the matter might be settled by compromise. However, where compromise is unlikely, any party may inform the court of this fact and the mediation order will be dissolved.

“If we were just talking about compromising a fair dollar amount for damages, it might make sense to mediate,” Whitehead commented. “But the legal issue that the judge is about to reach is whether the MBC rights to elect trustees are enforceable under Missouri law. The answer is yes or no, and there is not a middle ground.

“If the college has changed its mind and is now willing to admit the point of law that MBC has the right to elect trustees, then we would be glad to talk about the process of returning to the MBC family.

“If that is what the college wants to tell the convention messengers, we are all ears,” Whitehead said.

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