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[Gregory]

NOTE: I messed up the title.  I meant to say:  Is the litigitation Biblical not "mediation Biblical."


Several years ago, and prior to the litigation that 3-ABN and Danny Shelton filed against Gailon Joy and Bob Pickle ASI attempted to mediate a resolution of the issues.  That attempt failed.  In this attempt, Harold Lance represented ASI and he dwelt with Gailon Joy, Bob Pickle and myself.  I was personally involved and privy to what was going on.  I am going to post some of my perspective of that attempt and I will comment in part as to why I believe that it failed.  That will simply be my perspective.  It is likely that Mr. Lance, Mr. Joy and Mr. Pickle will each have their perspective and additional comments.  As I develop this, I will make some background comments that I believe will be helpful in understanding what happened and my involvement in this attempt.

ARBITRATION:  Arbitration is a formal process in which a hearing is held before a neutral hearing officer.  Each side argues their case.  The Hearing Officer makes a decision and has the authority to impose a settlement on the parties.  That decision is enforceable in a civil court.

MEDIATION: Mediation is a formal process by which a neutral hearing officer attempts to bring the respective parties into agreement.  The hearing officer has no authority to impose a resolution of the issues on the respective parties.  It is up to them to reach a common agreement.  Whether or not agreement is reached depends upon the parties. However, ]the agreement, if reached, is enforceable in a civil court.

There are several professional groups who have established standards for arbitration and for mediation.  Those standards differ in minor ways, but in general terms they are as I have stated above.

Some would ask if the ASI attempt was at arbitration or of mediation.  In my mind it most closely resembled mediation.

At the time ASI attempted to mediate I did not have any professional training in either arbitration or in mediation.  I actually knew very little about either from the professional point of view.  I suspect that there were others involved in this attempt who were in the same situation that I was in. To some degree this may have contributed to the failure.

I have since been trained by the Office of Resolution Management in Mediation.  I continue to receive on-going training that if I successfully complete it will lead to my certification as a professional Mediator certified to do mediation on my own.  I will simply say that with the training that I have received I would in some aspects relate differently to the attempt of ASI to mediate than I did at that time.  But, I and the others did what we thought best at that time. 

I will suggest that the following are some of the reasons that the attempt by ASI failed:

1)   The parties were unable to reach agreement on the issues that could be mediated.  Harold Lance, in my opinion, was correct is saying that there were some issues that were not a proper subject to mediate and that some issues could only be resolved by the civil courts.  Common agreement was not reached on that point.

Personally I believed that there was a very limited list of items that were subject to mediation.  Others disagreed with me.

2)   There was disagreement as to the extent to which the results of the mediation would be shared with the SDA public.  Folks, this is a very important aspect of mediation as it is professionally practiced in the United States.  In mediation, as I have been trained, all parties sign a legally binding agreement in this respect.  Without this agreement mediation never takes place.  This was a vital issue.  On the one side the so-called “stockholders in the seats” needed to have some information.  On the other hand mediation, as it is taught, believes that the discussions must take place in a situation where what is said will not be released to the public.  A failure to agree on this point was one reason the ASI attempt failed.

3)   Mediation, as I have been trained considers the process to be very important.  One aspect of that process it to assure that the process is not only fair and objective but that it also looks to be fair and objective.  In all formal mediations of which I have participated one of the first elements of business is to assure that all parties agree that certain aspects are fair and that there is no objection to those aspects of the mediation.  This agreement was never reached in the ASI process.  It was not so much that the process was not fair as that there was a perception that certain aspects of it did not appear to be fair and objective.  In the formal mediation in which I have been trained the response to such concerns is clear.  Either there is an immediate change in the process that is satisfactory to all or the mediation stops and does not take place.  The ASI attempt drug on for a while before it was called to a halt.  But, it never got down to the real issues.

4)   Harold Lance was a one voice for ASI.  There were three of us (Gailon, Bob and I).  We were three different people who shared some common views and differed in some aspects as to what we wanted to accomplish and how it should be accomplished.  Mr. Lance understandably felt some frustration when he would talk to one of us, think that he had an understanding and then another one of us would come up with another view.  Folks the reality is that this happens in mediation.  I have observed a mediation where ten different people represented one side and it was ten against one.  The mediator brought nine of them together into a common understanding and agreement as to what would be done. The tenth person left and did not participate.  That mediation was considered to be a success.

5)   Mr. Lance felt that some of us three broke the ground rules in the very beginning in a manner that made it impossible for the mediation to go forward.  We three had a different understanding and did not believe that we had broken those ground rules.  At this point in time I can understand his frustration with what he considered to be important ground rules.  But, the fact that we did not believe that those ground rules had been broken simply illustrates a communication failure rather than an attempt to break the rules.

6)   In summation:  I have attempted to give you a brief view of some of the reasons that I believe the attempt by ASI to mediate failed.  I do not point the finger of blame at any one.  The responsibility for the failure probably rests on all of the parties, but that does not mean that there was malice on anyone’s part.  It is simply what happened.  Well intentioned people attempted to participate in mediation and that attempt failed.  As to me personally:  I had limited expectations for the mediation.  I believed that it could be helpful in some areas but that there were other areas in which it could not be helpful and that would have to be resolved in civil court if ever resolved.

NOTE: In the time that has followed, there have been some limited attempts on the part of individuals on both sides to resolve specific issues.   Those attempts are not generally know to anyone other than the people involved and I am not going to discuss them further.   All of which I am aware of have failed.  I do not point any specific finger of blame at anyone.  I simply say that the responsibility for these failures rests on the parties involved.  In my training I have witnessed attempts to mediate in which one of the parties was “off the wall,” so to speak and yet something was accomplished.  Mediation will fail if the parties do not make it work.


=====

Edited to correct the name of this topic as stated in this post. - Daryl

[GrandmaNettie]

Very thought provoking summation of the process that took place almost 2 years ago.

=====

Edited to correct the name of this topic as stated in the OP. - Daryl

[Gailon Arthur Joy]

Very thought provoking summation of the process that took place almost 2 years ago.

But a very incorrect one, Grandma!!!

I have done mediation in the past and in mediation it is essential that all the parties be willing to compromise and work out, through an informal discussion, a stipulated agreement. Stipulated means all the parties have "agreed" to terms and conditions for conflict resolution, it is reduced to writing and signed by both parties. If a court is involved, then it is "So Ordered" by the signature of a presiding judge or magistrate. Appeal is not an option as it is mutially stipulated. And everybody looses something in a Mediation!!!

Mediation is not what the ASI hearing was even remotely about. It was an adversarial proceeding to finally bring DUE PROCESS to a deficient process
between the accused and her accusers and was structured as a "tribunal" with a panel of fact finders similar to the queens bench or a french court (five, I believe, that would be picked similarly to the voir dire process of a jury to eliminate conflicts of interst). The panel would listen to presentations and witnesses from both sides complete with exhibits and testimony. The panel could also ask questions. But, questions to the adversary parties were only done by the panel and they would accept questions from the other party but could choose to discard, ask or modify the questions ( a problem I felt hampered the extraction of truth from the parties and questions were going to be refereed by the old grey fox himself, Harold Lance).

The panel would then meet secretly and compile findings into a determination that would have the affect of a "recomendation" upon the parties. The parties must agree to follow the recommendations.

In fact, it had been agreed to limit the tribunal issues to the Marriage, divorce and remarriage. There was no question on this as that is the only way that 3ABN would proceed. We agreed to those terms and agreed to a discovery schedule.

The sticking point was the privacy issue. Again, this was NOT MEDIATION. It was an adversarial process. Given the very heavy connections between ASI, ASI Missons, INC, Harold Lance and 3ABN, DLS, etc, neither Linda, her close circle of advisors, nor myself trusted Harold Lance or the ASI tribunal to run a completely impartial hearing. Harold did not want even the notes of the parties to leave the room and we were to trust that whatever came from the tribunal would be untainted (with Harold Lance as referee or parlaimentarian over the deliberations).

I proposed that to keep them honest and impartial that the proceedings be recorded and transcribed and that all the recordations, notes and reports be available for review in the Heritage Rooms of the various SDA colleges and Universities where access would be limited but those who wanted to could review the trial transcript or recordations and notes in the process and determine fairness and equity. It was a clear deterent to abuse by Lance and team!!!

I would not put Linda Sue Shelton through yet another process that would potentially be steered to the advantage of ASI and 3ABN and DLS in secrecy. It was to be open and transparent or not at all!!! Federal courts are open and transparent!!!

I will also note that open and transparency was a principle that Thompson and the 3ABN board signed onto initially and then backed away from. The one clear lesson learned was that 3ABN is not OPEN or TRANSPARENT and does not intend to be such.

As to your argument, Mr Gregory, with the subtle little premise that secrecy was mandatory for successful mediation, I specifically accuse you of deliberately rewriting history to serve your current agenda. You knew very well that it was not a mediation and you knew very well that Linda and her inner circle did not trust ASI and I recall you concurred.

And I also specifically accuse you of deliberately mis-classifying it as a mediation process as you had access to all the inner workings and knew that it was adversarial in nature with a tribunal panel.

And regarding Arbitration: Arbitration is also quite different, is usually binding and agreed in advance that parties will allow enforcement of the decision by the civil courts. But, there are now several arbitration formats in use, but the only safe one for a plaintiff is to insist upon the following: You pick an arbitrator, they pick an arbitrator and the two select a neutral third. The potential for conflicts may be as simple as the selection of a single arbitrator may have background that runs contrary to the best interests of a client and is not discovered until after the proceedings, if at al.

I rather like juries myself. A tribunal panel is an OK alternaive but putting your case in the hands of some "compromise king" or an arbitrator with a Gregory agenda could prove fatal to your claims. Remember that mediators and arbitrators are professionals with all the predjudices that come with
"excessive"  education and civility. A jury of your peers can be an excellent cross section and if correctly selected and bio-ed will usually be quite interested in the pursuit of the common sense TRUTH.

What you have done under the guise of a credentialed Seventh-day Adventist Minister, Mr Matthews, is to publicly promote civil litigation as the preferred solution for many issues requiring conflict resolution within the Seventh-day Adventist Church. The proper foundation for all church based conflict resolution should be "reconciliation". If reconciliation is not possible, and it was not with 3ABN, DLS and Linda Sue Shelton, then due process does require some adversarial process, but whenever there is adversarial process, openess and transparency are the ONLY guarantees to fairness and equity.

Reconciliation is not foundational to Mediation, Arbitration or Litigation.

Shame on you, Mr Matthews, and I cannot wait to see the conclusion of your real agenda here. Its the chess player in me!!!

Rest assured, I will watch and correct the record as assuredly as I will for 3ABN. You will not get away with rewriting the very important history of this saga!!!

Gailon Arthur Joy

[Gregory]

Gailon, I happen to agree with much of what you have posted.  But, you have not accurately referenced in several areas what I said and I will pint out a couple:

Some would ask if the ASI attempt was at arbitration or of mediation.  In my mind it most closely resembled mediation.

   # ## # #   


# # # #

3)   Mediation, as I have been trained considers the process to be very important.  One aspect of that process it to assure that the process is not only fair and objective but that it also looks to be fair and objective.  In all formal mediations of which I have participated one of the first elements of business is to assure that all parties agree that certain aspects are fair and that there is no objection to those aspects of the mediation.  This agreement was never reached in the ASI process.  It was not so much that the process was not fair as that there was a perception that certain aspects of it did not appear to be fair and objective.  In the formal mediation in which I have been trained the response to such concerns is clear.  Either there is an immediate change in the process that is satisfactory to all or the mediation stops and does not take place.  The ASI attempt drug on for a while before it was called to a halt.  But, it never got down to the real issues.

You will note that I did not state that the ASI attempt was mediation as it is commonly defined by the professional mediation associations.  Rather, I made a very simple statement related to arbitration and one related to mediation.  I then went on to stated that in comparison to arbitration their attempt was most closely related to mediation.  In other words, it was closer to mediation than to arbitration.  If you will read my simple deefinations of the two you will understand why I said such.

Secondly,  in # 3 I stated that the process needed to be both fair, objective and it needed to appear to be fair/objective.  I then stated that the issue was not so much that it was not fair but that it did not appear to be fair and  objective.  I made a pretty clear statement that the proposed process violated the rule for mediatlion that it appear to be fair and objective.  That was the issue.  It was not so much that it was not fair because the process did not develop to the point where it could be stated whether or not it was fair and objective.  The process was stopped before it had developed to that point.

[irspro]

NOTE: I messed up the title.  I meant to say:  Is the litigitation Biblical not "mediation Biblical."


Several years ago, and prior to the litigation that 3-ABN and Danny Shelton filed against Gailon Joy and Bob Pickle ASI attempted to mediate a resolution of the issues.  That attempt failed.  In this attempt, Harold Lance represented ASI and he dwelt with Gailon Joy, Bob Pickle and myself.  I was personally involved and privy to what was going on.  I am going to post some of my perspective of that attempt and I will comment in part as to why I believe that it failed.  That will simply be my perspective.  It is likely that Mr. Lance, Mr. Joy and Mr. Pickle will each have their perspective and additional comments.  As I develop this, I will make some background comments that I believe will be helpful in understanding what happened and my involvement in this attempt.

ARBITRATION:  Arbitration is a formal process in which a hearing is held before a neutral hearing officer.  Each side argues their case.  The Hearing Officer makes a decision and has the authority to impose a settlement on the parties.  That decision is enforceable in a civil court.

MEDIATION: Mediation is a formal process by which a neutral hearing officer attempts to bring the respective parties into agreement.  The hearing officer has no authority to impose a resolution of the issues on the respective parties.  It is up to them to reach a common agreement.  Whether or not agreement is reached depends upon the parties. However, ]the agreement, if reached, is enforceable in a civil court.

There are several professional groups who have established standards for arbitration and for mediation.  Those standards differ in minor ways, but in general terms they are as I have stated above.

Some would ask if the ASI attempt was at arbitration or of mediation.  In my mind it most closely resembled mediation.

At the time ASI attempted to mediate I did not have any professional training in either arbitration or in mediation.  I actually knew very little about either from the professional point of view.  I suspect that there were others involved in this attempt who were in the same situation that I was in. To some degree this may have contributed to the failure.

I have since been trained by the Office of Resolution Management in Mediation.  I continue to receive on-going training that if I successfully complete it will lead to my certification as a professional Mediator certified to do mediation on my own.  I will simply say that with the training that I have received I would in some aspects relate differently to the attempt of ASI to mediate than I did at that time.  But, I and the others did what we thought best at that time. 

I will suggest that the following are some of the reasons that the attempt by ASI failed:

1)   The parties were unable to reach agreement on the issues that could be mediated.  Harold Lance, in my opinion, was correct is saying that there were some issues that were not a proper subject to mediate and that some issues could only be resolved by the civil courts.  Common agreement was not reached on that point.

Personally I believed that there was a very limited list of items that were subject to mediation.  Others disagreed with me.

2)   There was disagreement as to the extent to which the results of the mediation would be shared with the SDA public.  Folks, this is a very important aspect of mediation as it is professionally practiced in the United States.  In mediation, as I have been trained, all parties sign a legally binding agreement in this respect.  Without this agreement mediation never takes place.  This was a vital issue.  On the one side the so-called “stockholders in the seats” needed to have some information.  On the other hand mediation, as it is taught, believes that the discussions must take place in a situation where what is said will not be released to the public.  A failure to agree on this point was one reason the ASI attempt failed.

3)   Mediation, as I have been trained considers the process to be very important.  One aspect of that process it to assure that the process is not only fair and objective but that it also looks to be fair and objective.  In all formal mediations of which I have participated one of the first elements of business is to assure that all parties agree that certain aspects are fair and that there is no objection to those aspects of the mediation.  This agreement was never reached in the ASI process.  It was not so much that the process was not fair as that there was a perception that certain aspects of it did not appear to be fair and objective.  In the formal mediation in which I have been trained the response to such concerns is clear.  Either there is an immediate change in the process that is satisfactory to all or the mediation stops and does not take place.  The ASI attempt drug on for a while before it was called to a halt.  But, it never got down to the real issues.

4)   Harold Lance was a one voice for ASI.  There were three of us (Gailon, Bob and I).  We were three different people who shared some common views and differed in some aspects as to what we wanted to accomplish and how it should be accomplished.  Mr. Lance understandably felt some frustration when he would talk to one of us, think that he had an understanding and then another one of us would come up with another view.  Folks the reality is that this happens in mediation.  I have observed a mediation where ten different people represented one side and it was ten against one.  The mediator brought nine of them together into a common understanding and agreement as to what would be done. The tenth person left and did not participate.  That mediation was considered to be a success.

5)   Mr. Lance felt that some of us three broke the ground rules in the very beginning in a manner that made it impossible for the mediation to go forward.  We three had a different understanding and did not believe that we had broken those ground rules.  At this point in time I can understand his frustration with what he considered to be important ground rules.  But, the fact that we did not believe that those ground rules had been broken simply illustrates a communication failure rather than an attempt to break the rules.

6)   In summation:  I have attempted to give you a brief view of some of the reasons that I believe the attempt by ASI to mediate failed.  I do not point the finger of blame at any one.  The responsibility for the failure probably rests on all of the parties, but that does not mean that there was malice on anyone’s part.  It is simply what happened.  Well intentioned people attempted to participate in mediation and that attempt failed.  As to me personally:  I had limited expectations for the mediation.  I believed that it could be helpful in some areas but that there were other areas in which it could not be helpful and that would have to be resolved in civil court if ever resolved.

NOTE: In the time that has followed, there have been some limited attempts on the part of individuals on both sides to resolve specific issues.   Those attempts are not generally know to anyone other than the people involved and I am not going to discuss them further.   All of which I am aware of have failed.  I do not point any specific finger of blame at anyone.  I simply say that the responsibility for these failures rests on the parties involved.  In my training I have witnessed attempts to mediate in which one of the parties was “off the wall,” so to speak and yet something was accomplished.  Mediation will fail if the parties do not make it work.


=====

Edited to correct the name of this topic as stated in this post. - Daryl

Mr. Matthews:  

Neither mediation nor arbitration will be effective when either side is convinced they have the upper hand while concomitantly merely thinking the other side has the lower hand coupled with lack of faith in a truly unbiased go-between for the parties.

As an Appeals Conferee, the law was rather explicit while the facts became somewhat more challenging.  The IRS agreed to recognize certain common-law marriages as of certain dates recognized by the various and sundry jurisdictions while at the same time recognizing certain illegal domestic relationships of co-habitation after that date.  Many employers felt it a moral responsibility at a time when they strictly enforced the co-habitation provisions, administratively how they individually did it was not fully known.

My FIL was the state manager of construction and maintenance of a large natural gas distribution entity where they monitored the supervisory staff in that department rather strictly, maybe from a safety standpoint.  I was called on to conferee a case on both self-employment and income taxes on certain payments with consistent documentation relating to payments for services rendered in a "source and application" or "net worth" where the appealant alleged co-habitation rather than numerous customers.  The attitude of the general public has changed tremendously in recent years on co-habitation.

I saw disturbing indications of "avoiding the appearance of evil" that some "shareholders in the pew" would not willingly accept which could be tempered to some extent due to their financial participation.  Financial support should not be a factor in our individual judements.  As a peculiar people, I think we each have an individual right whether we are financial supporters or not.

I see the jockeying of one side with per se allegations of defamation against a "shareholder in the pew" segment which would not put this matter on "all fours" when you look at it objectively.  I am a great believer in statistics for some things; however, my religious thought, character, and reputation is to strive to be above reproach.  I have examined an extraordinary number of media taxpayer as an insurance specialist where special training was required for  unusual methods of accounting and tax law applicable.  Many of these insurance conglomerates owned radio, tv, and other media types of business.  These conglomerates used a number of methods to judge their acceptance by the general public.  We'll not discuss the various and sundry ways broadcasters use to shape public opinion.  I think my knowledge of the broadcast industry that you could see greater concern of management morals to exist in the religious broadcast industry than other types.  That being part of the business model of any religious broadcast business should model itself to appeal to greatest number of viewers as in any model and to cater to the largest number of financial supporters.  Due the the issues at hand, I am not satisfied that broadcast managment and control has paid the proper attention to the financial supporters and the "real" reasons for changes in financial support, if any.

One of the first questions I asked a taxpayer was their determination of overall increases or decreases in gross receipts for a general direction of my audit.  I can see that per se allegations to a jury from the general public which is not the primary source of revenue will be prejudicial.  I would see this as better decided by a judges ruling from the bench with proper documentation of real reason for lower financial support.

I do know from my wide experience and more limited experience of personal viewing of the broadcast industry that moral stature of broadcast management may vary as to age, gender, religious affiliation, geographics, etc.