APPROACHING MEDIATION
Mediation is to begin in a few days. The initial session has been scheduled for Monday, November 6, to Wednesday, November 8. The two sides are the Episcopal Church and the Episcopal Church in South Carolina on one and the Diocese of South Carolina on the other. The lawyers of the two sides will meet with senior federal district judge, Joseph Anderson, in Columbia. Judge Richard Gergel, The U.S. District Court judge in Charleston who is handling the case of vonRosenberg v. Lawrence, ordered the mediation on August 30. Both sides agreed that all issues in contention, in state and federal cases, would be open for consideration.
According to the U.S. District Court rule book, the two parties may choose not to meet face to face. (Find the rule book here .) They may sit in separate rooms, write out their demands, and have the mediator deliver the offers and counter-offers back and forth. Although the judge is the facilitator, any agreement is entirely at the discretion of the lawyers and their institutional authorities. The rules allow thirty days for the mediation. If the two sides cannot come to a mutually agreeable conclusion, the mediation ends and the court processes resume as before. If, on the other hand, the two sides reach an agreement, they put it in writing and sign it. Once signed, it is fixed law and will be announced to the public. If the written agreement is long, the court allows fourteen days for its preparation. If all issues are settled in the agreement, all litigation ends in the courts. Thus, the mediation has the potential of ending once and for all nearly five years of legal warfare between the two sets of Christians.
So far, the court has not strictly adhered to the rule book. Yet, it seems reasonable to assume we will know the outcome of the mediation by mid-December, if not before. If the mediation fails, we will know sooner rather than later. At this point, apparently only one session has been scheduled, Nov. 6-8, but presumably there could very well be more meetings if no agreement is reached next week.
The time has passed for public speculation on what a settlement should be. Communicants on both sides should have made their thoughts known to their diocesan officials by now if they were going to do so. Once mediation begins, it is done in private. All talk is conducted confidentially. No one on either side is allowed to reveal what is going on in the talks. It will not be appropriate for the public to try to influence the negotiations once the mediation begins.
Certainly everyone on both sides wishes all this whole mess would go away. Reality holds, however, that this is not likely since the two sides have very different views of what the best settlement should be. Basically each wants the same things: the legal entity of the old diocese and the parish properties. I do not see how the entity of the pre-schism diocese can be divided up, part here and part there. Surely, the whole legal status of the diocese must be granted to one side alone. The 36 parish properties are another matter. They could be divided.
Indeed, this is where we stand now in the courts. The South Carolina Supreme Court issued an order on August 2, 2017, that 29 of the 36 parishes in question remain under the trust interest of the Episcopal Church and the Church diocese while 7 parishes are free of this. The trust derives from the Dennis Canon, a church law that was part of the Episcopal Church after 1979 and officially part of the Diocese of South Carolina, at least from 1987 to 2010. The 7 include 6 parishes in the Diocese of South Carolina and one now in the ACNA Diocese of the Carolinas, St. Andrew's of Mt. Pleasant. So, in other words, the SCSC has ordered 29 parishes back to TEC and allowed 6 to remain in DSC separate from TEC. The Court also awarded Camp St. Christopher to TEC/TECSC. At the same time, the SCSC opined that the Episcopal Church is hierarchical and that the Church retains the entity of the old diocese. However, the SCSC left it to the federal court to finish up this point.
However, the Aug. 2 decision is not quite final. On Sept. 1, the DSC lawyers entered in the SCSC three petitions for rehearing of the case. Although it is extremely unlikely the Court will agree to reopen the case, the Aug. 2 decision is on hold until these petitions are answered. This uncertainty will hang over the mediation process.
I have no official connection with either diocese and am certainly not privy to the thoughts, policies, and procedures of the lawyers and officials of the two sides. I can only speak for myself as a student of the history of the schism. However, I think everyone would do well to tamp down expectations for the mediation. There are several reasons for this.
The gulf between the two sides is wide and deep. The schism was the result of thirty years of rising animosity on the part of the diocesan leadership against the Episcopal Church. These men did not take the actions they did frivolously. They believed very deeply in their cause. They came to see the Episcopal Church as fatally flawed. What brought this to a head was the issue of homosexuality. The DSC leaders refused to accept non-celibate homosexuals in the clergy, the blessings of same-sex unions, and equal rights for the transgendered, all reforms adopted by the Episcopal Church in the 1990s, 2000s, and 2010s. The DSC ruling clique believed they were saving the diocese from Episcopal Church apostasy by taking it out of TEC and into the Anglican Realignment. This is meant to be a restoration of "orthodox" Anglicanism, or a preservation of "the faith once delivered" as they often say.
Case in point: Bishop FitzSimons Allison's recent letter to the editor denouncing the idea of reconciliation and implying that mediation should fail (see commentary here ). He said TEC should allow DSC to keep all it has now (the diocese and all the parishes in question). If not, DSC should abandon mediation. Allison was bishop of DSC from 1982 to 1990. His record is well known (see detailed discussion in my book, A History of the Episcopal Church Schism in South Carolina ). For the last twenty years he has actively aided and abetted movements against the national Church by supporting First Promise and defending its leaders (FP created the first schism by forming Anglican Mission in the Americas under Rwanda), "ordaining" bishops contrary to the canons of TEC, and very publicly supporting DSC's efforts to remove itself from TEC. For his provocative actions, Allison was censured by the House of Bishops in 2004. In 2007 he advised the diocese to defy the laws of the Episcopal Church and consecrate Mark Lawrence as bishop anyway after ML had failed to get consents. The elder statesman Allison became the usual leading public cheerleader for Lawrence after that. Now, at age 90, he remains a staunch defender of the schism in SC. The guiding principle among the leadership of DSC since the Allison years is that ideology takes precedence over institutional integrity. If Allison's "all or nothing" attitude is the prevailing one in DSC, mediation is doomed to fail before it starts.
Other DSC leaders also have many years of emotional investment in their one-sided war against the Episcopal Church. Kendall Harmon arrived in DSC in 1987 and immediately moved to the forefront in Allison's crusade on sexuality. Mark Lawrence made his maiden convention speech on sexuality in 1991. I imagine there are many clergy and laity in DSC who would like to have a compromise settlement with TEC. However, they do not run DSC. DSC is now, as it has been for many years, controlled by a small and secretive collection of like-minded men who are devoted to their deeply-held views of religion. In spite of the circuit court's ludicrous assertion, DSC is not congregational, quite the opposite. It is rigidly authoritarian. Decisions are routinely made in secret by a small number of people who hand them down to the clergy and laity (as in the schism of 2012).
In fact, from the announcement of the mediation, Sept. 1, to the organizational meeting for mediation on Oct. 4, the leaders of DSC refused even to admit that mediation was going to take place. There was a news blackout among DSC and its Internet allies. Perhaps at the time they were too busy trashing Justice Kaye Hearn and conducting a public relations campaign for "freedom of religion" (i.e. the buildings are "ours"). As of this writing, the DSC leaders have made no mention of mediation since their announcement of Oct. 4. The Church diocese, on the other hand, has issued numerous announcements about mediation, the most recent from Bishop Adams. Find it here .
Another case in point: DSC flatly refused even to talk about TEC's offer of a compromise settlement in June of 2015. TEC offered to recognize the independence of all 35 parishes and to relinquish any claim to the property. In return, TEC would get the legal entity of the diocese including all of its rights and assets. In short, a swap of the parishes for the diocese. If DSC had accepted this offer, the parishes would now own outright the local properties. Instead, the SCSC has returned 29 of them to TEC control. Thus, there is a record of "mediation" of a sort. DSC defiantly rejected the offer. This kind of attitude does not bode well for the new mediation.
The situation for TEC has changed too. At the time of the offer of compromise settlement in 2015, TEC was coming off a complete defeat in the circuit court and viewing a dim prospect of going to a supreme court that had issued the All Saints decision. This ruling (Sept. 2009) defended secession and local property and rejected the Church's claim of automatic validity of the Dennis Canon in South Carolina. Today, matters are quite different. TEC and TECSC have the superior position from what the SCSC ruled on Aug. 2 and from the prospect of an advantageous ruling from the federal court next year. This should make one question whether TEC/TECSC would repeat the offer of 2015. I think it reasonable to doubt it.
In addition, the lack of a final resolution in the SCSC will complicate the mediation. Given the size and complexity of this case, it is reasonable to assume it will take the SCSC several months to deliver a response to DSC's three petitions for rehearing. (It took the court six months to respond to the last appeal for rehearing.) I do not see how the SCSC can make a response to the petitions for rehearing during the time allotted to the mediation process. This will leave the lawyers to discuss what might be rather than what is. Moreover, the DSC lawyers can cling to the hope that the U.S. Supreme Court could take the case on appeal if they lose in SCSC. This too could dampen DSC's interest in making a compromise deal now.
If the leaders of DSC were really smart, they would recognize the reality of their situation and make the best deal they can right now with TEC/TECSC in order to salvage what is left of their experiment. The fact is that the schism has failed. DSC is collapsing into disarray. The diocese has lost almost half its members and a third of its income in the nearly ten years since Mark Lawrence arrived. It lost 10,000 members in the schism alone, counting the local churches that stayed with TEC and those who abandoned the 50 secessionist parishes and missions. Moreover, DSC has lost members steadily every year since the schism. The trends are very clear. DSC is free falling to disaster. Common sense would say DSC should cut the best deal they can now and not repeat something like the terrible mistake they made in rejecting compromise in 2015. However, I wonder whether people who are committed to a rigid ideology would be flexible enough to compromise on some really big issues.
Thus, given the realities of the history of the schism and the current state of affairs, I think it best that we restrain expectations for the mediation next week. If it works to bring mutual agreement, well and good. If it does not, we must go on striving for the best as God gives us the ability to discern it.
We are living in an age of destructive division. Our nation is torn by forces that want us to turn against each other and diminish our fellow countrymen and women. Our church is torn by forces that want us to turn against each other and condemn our former friends as enemies. We are all being put to the test of good will for our fellow travelers. Our nation and our national church were founded at the same moment a long time ago on the principle of the common good. We are all in this together. We work best as corporate bodies where individuals give and take for the sake of something bigger than themselves. The individual has rights, but not the right to destroy the common good. To be true to our great historical legacy, we must not allow the dark forces that would divide us and turn us against each other to prevail. We must stay together on common ground. We have too much at stake. The future of our civic state and our religion depends on our commitment to mutual respect and cooperation.
The situation for TEC has changed too. At the time of the offer of compromise settlement in 2015, TEC was coming off a complete defeat in the circuit court and viewing a dim prospect of going to a supreme court that had issued the All Saints decision. This ruling (Sept. 2009) defended secession and local property and rejected the Church's claim of automatic validity of the Dennis Canon in South Carolina. Today, matters are quite different. TEC and TECSC have the superior position from what the SCSC ruled on Aug. 2 and from the prospect of an advantageous ruling from the federal court next year. This should make one question whether TEC/TECSC would repeat the offer of 2015. I think it reasonable to doubt it.
In addition, the lack of a final resolution in the SCSC will complicate the mediation. Given the size and complexity of this case, it is reasonable to assume it will take the SCSC several months to deliver a response to DSC's three petitions for rehearing. (It took the court six months to respond to the last appeal for rehearing.) I do not see how the SCSC can make a response to the petitions for rehearing during the time allotted to the mediation process. This will leave the lawyers to discuss what might be rather than what is. Moreover, the DSC lawyers can cling to the hope that the U.S. Supreme Court could take the case on appeal if they lose in SCSC. This too could dampen DSC's interest in making a compromise deal now.
If the leaders of DSC were really smart, they would recognize the reality of their situation and make the best deal they can right now with TEC/TECSC in order to salvage what is left of their experiment. The fact is that the schism has failed. DSC is collapsing into disarray. The diocese has lost almost half its members and a third of its income in the nearly ten years since Mark Lawrence arrived. It lost 10,000 members in the schism alone, counting the local churches that stayed with TEC and those who abandoned the 50 secessionist parishes and missions. Moreover, DSC has lost members steadily every year since the schism. The trends are very clear. DSC is free falling to disaster. Common sense would say DSC should cut the best deal they can now and not repeat something like the terrible mistake they made in rejecting compromise in 2015. However, I wonder whether people who are committed to a rigid ideology would be flexible enough to compromise on some really big issues.
Thus, given the realities of the history of the schism and the current state of affairs, I think it best that we restrain expectations for the mediation next week. If it works to bring mutual agreement, well and good. If it does not, we must go on striving for the best as God gives us the ability to discern it.
We are living in an age of destructive division. Our nation is torn by forces that want us to turn against each other and diminish our fellow countrymen and women. Our church is torn by forces that want us to turn against each other and condemn our former friends as enemies. We are all being put to the test of good will for our fellow travelers. Our nation and our national church were founded at the same moment a long time ago on the principle of the common good. We are all in this together. We work best as corporate bodies where individuals give and take for the sake of something bigger than themselves. The individual has rights, but not the right to destroy the common good. To be true to our great historical legacy, we must not allow the dark forces that would divide us and turn us against each other to prevail. We must stay together on common ground. We have too much at stake. The future of our civic state and our religion depends on our commitment to mutual respect and cooperation.
