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Published online by Cambridge University Press: 13 December 2010
Churches, in common with other unincorporated associations, thrive on a healthy dynamic amongst their members whose energies and gifts, properly harnessed, can serve to promote mission and witness, to build up the community of faith and to evangelise with vigour and integrity. Not infrequently, however, in both aspiration and application, the conduct of believers (individually and corporately) can fall short of that paradigm and the result can be destructive and debilitating. This paper identifies and explores areas within the current structures of the Church of England where express provision already exists for a formal process of mediation or other Alternative Dispute Resolution (ADR), suggesting that greater use of mediation in the future would be beneficial to the Church of England functionally, spiritually and (not least) financially.1
1 This is a revised version of a paper given at Lincoln's Inn in July 2010 as part of the Ecclesiastical Law Society's series of London Lectures. For a complementary contribution from a distinctly theological vantage point, see Fielding, S, ‘Mediation in the Church of England: Theology and Practice’ (2011) 13 Ecc LJ 65.Google Scholar
2 Sir Anthony Clarke MR (now Lord Clarke of Stone-cum-Ebony), speaking at the Mediation Council Conference, May 2008.
3 The following text is derived in substance from Hill, M, Ecclesiastical Law (third edition, Oxford University Press, 2007)Google Scholar, paras 3.21ff.
4 Parochial Church Councils (Powers) Measure 1956, s 2(1), substituted by the Synodical Government Measure 1969, s 6. Prior to the substitution, this had read, ‘It shall be the primary duty of the council in every parish to co-operate with the minister in the initiation, conduct and development of church work both within the parish and outside’.
5 Parochial Church Councils (Powers) Measure 1956, s 2(2)(a), (b) (as so substituted).
6 Re St Peter, Roydon [1969] 1 WLR 1849, [1969] 2 All ER 1233, Chelmsford Cons Ct.
7 [1969] 1 WLR at 1852F; [1969] 2 All ER at 1235B.
8 Ibid at 1235G.
9 Ibid at 1235D.
10 Parochial Church Councils (Powers) Measure 1956, s 9(3). Note also that any question arising on the interpretation of the general provisions relating to PCCs is to be referred to the bishop and any decision given by him or by any person appointed by him on his behalf is final. See the Church Representation Rules, App II para 18.
11 This is discussed in more detail below.
12 The following text is derived in substance from Hill, Ecclesiastical Law, paras 4.43 ff.
13 This Measure was substantially amended by the Incumbents (Vacation of Benefices) (Amendment) Measure 1993.
14 The Measure also deals with the physical or mental incapacity of the incumbent, which is not relevant to the current discussion.
15 Incumbents (Vacation of Benefices) Measure 1977, s 19A.
16 Ibid, s 1A(1).
17 Ibid, s 1A(1A). There is no discretion to adjust this timescale.
18 I venture two reasons for this: first, reliance is generally placed on clergy who are well intentioned ‘honest brokers’ but not trained professional mediators; and second, because the protagonists see this as a ‘cease fire’ during which to make preparations for being vindicated at the Inquiry.
19 It concerned the parish of Trumpington in the diocese of Ely.
20 Cheesman v Church Commissioners [2000] 1 AC 19 at 39. The case concerned a proposed pastoral scheme which Lord Lloyd considered to be an attempt to get round a discontinued pastoral breakdown inquiry. He concluded that there was ‘no other plausible explanation’ (at 44). Lord Hobhouse of Woodborough and Sir Christopher Slade thought otherwise and thus Lord Lloyd found himself in the minority.
21 The following text is derived in substance from Hill, Ecclesiastical Law, paras 6.22 ff.
22 Clergy Discipline Measure 2003, s 11(1).
23 Clergy Discipline Measure 2003, s 11(1)(a), (b).
24 Ibid, s 11(2); Clergy Discipline Rules 2005, r 12(1).
25 Clergy Discipline Measure 2003, s 12(1). The courses of action open to the bishop at this stage are (i) he may take no further action; (ii) he may, if the respondent consents, direct that the matter remain on the file conditionally; (iii) he may direct that an attempt be made to bring about conciliation; (iv) he may impose a penalty by consent; or (v) he may direct the complaint to be formally investigated. The Code of Practice expressly enjoins the bishop not to engage in ‘plea-bargaining’ with the respondent: para 112.
26 Clergy Discipline Measure 2003, s 8(3). The motion recently passed by General Synod concerning membership of the British National Party does not sit comfortably with this provision.
27 Clergy Discipline Measure 2003, s 8(2).
28 Clergy Discipline Measure 2003, s 15(1), (2). Detailed provisions concerning the manner in which the conciliation is to be conducted and amplifying those in the Measure are set out in the Clergy Discipline Rules 2005, r 26.
29 Clergy Discipline Measure 2003, s 15(3).
30 Code of Practice, para 133: ‘It is of fundamental importance that the conciliator should be impartial, acceptable to both parties, and professionally qualified’.
31 Clergy Discipline Measure 2003, s 15(4). For further guidance as to the conduct of a conciliation, see the Code of Practice, paras 127–139.
32 Or such further period as the conciliator, with the agreement of the complainant and the respondent, may allow: Clergy Discipline Measure 2003, s 15(4)(a). There seems to be no long-stop limitation on the length of time the conciliation process may last, provided its continuance has the agreement of both complainant and respondent.
33 Ibid, s 15(4)(a).
34 Ibid, s 15(4)(b).
35 Ibid, s 15(4)(c).
36 Ibid, s 15(5)(b), specifying the options available at s 12(1)(a), (b), (d) and (e). The same courses of action are available to the bishop in the event that the complainant and the respondent do not agree to the appointment of a conciliator or as to the person to be appointed: s 15(5)(a). General guidance may be found in the Code of Practice at paras 140–156.
37 Clergy Discipline Rules 2005, SI 2005/2022.
38 Code of Practice Pursuant to the Clergy Discipline Measure 2003 (2005, GS 1585): there is the warning that ‘parties will not be pressurised [sic] by the conciliator into agreeing something they may later regret’.
39 The Clergy Discipline Commission has issued Guidance on Penalties which gives a broad indication of when removal from office may be relevant: see <http://www.ecclaw.co.uk/clergydiscipline/penalties.pdf>, accessed 22 September 2010.
40 Code of Practice, para 127.
41 Code of Practice, para 130.
42 The precise terms of which remain unclear at the time of writing.
43 Re St Mary, Barcombe (24 November 2010), Chichester Cons Ct, unreported. This judgment, in common with all recent judgments of the Chichester Consistory Court, may now be found on the Diocesan website: <http://www.diochi.org.uk/index.cfm?fuseaction=activities.content&cmid=424>, accessed 22 September 2010.
44 Re St Mary, Barcombe at para 5.
45 See by way of example the procedural issues which formed the subject matter of a successful appeal to the Court of Arches in Re Holy Trinity, Eccleshall (July 2010, unreported), noted at (2011) 13 Ecc LJ 123.
46 Behrens, Notably J, Church Disputes Mediation (Leominster, 2003)Google Scholar.
47 The Clergy Discipline Commission paper, ‘Finding a Conciliator’, concludes with the charmingly enigmatic ‘Some funding is available from the Church Commissioners’.
48 The Commission paper (ibid) advises bishops to proceed with caution with pro bono mediators: ‘While many offers will be genuine and well motivated, some may come with an expectation of using the diocese's name and standing to promote the conciliator’.
