Over at the House of Bishops / Deputies list there's some discussion going on about why we can't have more mediation or reconciliation instead of litigation, in addressing some of the painful controversies with dissident members or parishes and even large chunks of dioceses. Much of the litigation, of course, focuses on the property issues -- mostly real property issues.
I sympathize with those who wish we didn't have to resort to the courts. One often hears Paul's advice not to go before a civil court cited; but then when he got into a spot with his Jewish countrymen, he appealed to Caesar.
However, I think it is fair to note that in many cases the petitioners who, following Paul in his "appeal to Caesar" modality, are those who wish to remove church property from the control of the larger diocese or church. There have also been a few failed efforts at reconciliation which cast a larger shadow over the successful efforts; this is exacerbated, no doubt, by the press both "sacred" and secular.
There seems to me to be another reality at work: some people just can't be negotiated with; they don't want to negotiate even when negotiation is offered. That -- coupled with the fact that, if I'm not mistaken, about 80 - 90 percent of all such property cases end up favoring the "hierarchical church" -- presents the dissidents with three possibilities:
1) Negotiate and likely and up having to pay a fair price for the property, or
2) Litigate, spending perhaps less than the property would cost, but on the chance you might win and get it for nothing beyond the money spent to press the suit; or
3) Abdicate, walking away and starting anew, but then having to spend a pretty penny to do so.
Given that there is bound to be a cost involved, even the "logical" choice would appear to be (2), unless the legal costs become prohibitive.
This choice is, at least in some cases, also fueled by a high level of a "God is on our side and will deliver us" mentality. A perusal of some of the dissident side's reflection on their court cases, and indeed the whole course of the crisis in the Anglican Communion and environs, reveals that the Deuteronomic Historian's philosophy is alive and well ("If we do what God wants God will reward and protect us..." ) So that emotional pressure adds to the "logical" choice to risk litigation on the 10-20% chance of winning. Beats the lottery, hands down; and inclines the heart away from reconciliation or negotiation.
Tobias Haller BSG
This post has engendered a number of comments, some of which seem to derive from portions of it having been quoted out of context -- and with an added gloss -- at SFiF. Fr Matt commented below as well, and I responded to his very courteous note. I want to summarize what I said and add it here as an update, to help clarify what I intended in this brief reflection. I invite you to read the string of comments for further insight.
This reflection was written in answer to the question, "Why can't we all get along" and was an effort to understand why a parish would choose litigation -- from the get-go -- rather than negotiation or abdication. I think my original statement is true in many (not "most" -- as the gloss to my comments asserted at SFiF) cases. It appears to be true in relation to Don Armstrong's parish, and in the California parishes; the story in Virginia seems to be mixed, but as "the witnesses do not agree" I'm content to set that aside. What I'm left with is evidence from past reading in the Clergy Law and Tax Report, not just from TEC cases, but other churches. Good-faith negotiation seems to be rare, and litigation common. I've also spelled out [in the comments] the pressure to litigation from the "hierarchical church" side -- I don't mean to put all of the "blame" on dissident parishes, by any means.
In part I was trying to lay out the reasons for choosing litigation over negotiation (which takes both sides' agreement, and which often fails early on) or abdication (the third option I describe) from the dissident side; which Phil dismisses as "trivial" or so obvious it doesn't require saying. To my mind, the effort to alienate property rather than walking away and starting fresh, especially in places where the track record on court decisions is against the congregation and in favor of the hierarchy, requires some explanation as to what drives the movement in that direction. And I think it is the small but real hope of winning the case, and a very firm belief in the rightness of the cause. That does not seem to me to be unreasonable.