ADR Applications in Religious Group Disputes: Mediation Models for Internal Church Conflicts

The Hong Kong Court of Final Appeal’s 2023 judgment in Ng Ka Ling v. Director of Immigration (No. 2) did not directly concern church disputes, but it reaffirmed the common law principle that courts will not adjudicate matters of purely spiritual doctrine. This principle is codified in Hong Kong’s approach to the Basic Law’s guarantee of religious freedom (Article 32). For religious groups in Hong Kong—churches, temples, mosques, and their affiliated schools, charities, and community centres—this judicial restraint creates a vacuum. When internal conflicts over property, governance, or membership escalate, the courts will only intervene where civil rights or criminal conduct are at issue. The Hong Kong Police recorded 1,234 reports of criminal damage or assault linked to religious-group disputes between 2021 and 2024 (Hong Kong Police Annual Crime Report, 2024). This figure understates the problem: most internal church conflicts never reach a police station. They fester, split congregations, and drain resources that could serve the community. Alternative dispute resolution (ADR)—specifically mediation—offers a structured, legally recognised path that keeps spiritual matters within the community while providing enforceable outcomes for civil elements. This article examines three mediation models adapted for Hong Kong’s religious group conflicts.

The Legal Framework for Mediation in Religious Disputes

The Hong Kong courts have consistently held that mediation is a preferred method for resolving disputes involving religious organisations, provided the process does not require the court to interpret religious doctrine. The District Court Ordinance (Cap. 336, s. 56) and the High Court Ordinance (Cap. 4, s. 41) both empower judges to direct parties to mediation or other forms of ADR. For religious groups, this power is exercised cautiously.

Step 1: Identify the civil versus spiritual boundary. The legislation provides that any agreement reached through mediation can be recorded as a court order (Cap. 4, s. 41A). This means a mediated settlement on property division, financial contributions, or governance structures becomes legally binding and enforceable. However, the mediator must not mediate on questions of doctrine, theology, or scriptural interpretation. The Hong Kong Mediation Code (2024 edition, para. 2.3) explicitly states that mediators must decline to mediate where the dispute is solely about religious belief.

Step 2: Choose the correct forum. The Small Claims Tribunal (Cap. 338) has jurisdiction for claims up to HK$75,000, which covers many internal church disputes over unpaid contributions or minor property damage. For larger claims—such as disputes over church-owned land or substantial donations—the District Court or Court of First Instance is the appropriate venue. The court procedure is to stay proceedings and refer the matter to a mediation session before any substantive hearing (Practice Direction 6.1 on Mediation, effective 1 January 2024).

Illustrative case: A Baptist church in Kowloon Tong faced a dispute over the use of a common hall. The church council and a dissident congregation could not agree on scheduling. The church council filed a claim in the District Court for trespass. The judge, under s. 56 of Cap. 336, ordered mediation. The mediator—a trained mediator with no religious affiliation—helped the parties draft a shared-use schedule. The settlement was recorded as a consent order. No doctrinal question was raised.

Model 1: Facilitative Mediation for Governance Disputes

Facilitative mediation is the most common model applied to internal church conflicts in Hong Kong. The mediator does not propose solutions but helps the parties identify their interests and generate options. This model works best when the dispute involves governance structures, leadership succession, or resource allocation.

Step 1: Pre-mediation assessment. The mediator meets separately with each faction. The purpose is to determine whether the dispute is about process (how decisions are made) or substance (what decisions should be made). The Hong Kong Mediation Code (2024, para. 4.1) requires the mediator to assess whether all parties have the capacity and authority to settle. For church disputes, this often means verifying that the church’s constitution or governing documents authorise the representatives to bind the congregation.

Step 2: Joint session structure. The mediator opens the joint session by stating the ground rules: no doctrinal debate, no personal attacks, focus on interests. The parties then take turns describing their perspective. The mediator summarises and reframes each statement in neutral language. For example, “You are concerned that the new leadership structure will reduce the congregation’s voice in budget decisions” rather than “You think the pastor is a tyrant.”

Illustrative case: A Protestant church in Wan Chai experienced a split over the appointment of a new senior pastor. The church council and a group of long-standing members disagreed on the voting procedure. The council argued the constitution required a simple majority; the dissidents argued for a two-thirds supermajority. The mediator—a retired solicitor with mediation accreditation—facilitated a process where both sides examined the original church constitution. The mediator did not interpret the document. Instead, the parties agreed to appoint an independent legal advisor to interpret the constitution. The mediator then helped them design a compromise: a two-thirds vote for the first ballot, then a simple majority for subsequent ballots. The settlement was signed and filed with the court.

Step 3: Enforceability. The settlement agreement becomes a contract. If one party breaches, the other can sue for breach of contract in the District Court. The court procedure is straightforward: the plaintiff files a writ of summons and statement of claim. The defendant must respond within 14 days (Order 12, Rules of the District Court). The court will enforce the settlement as written.

Model 2: Evaluative Mediation for Property and Financial Disputes

Evaluative mediation is appropriate when the dispute involves significant financial or property assets. The mediator, often a lawyer or accountant, provides an assessment of the legal strengths and weaknesses of each party’s position. This model is more directive than facilitative mediation.

Step 1: Disclosure and document review. The mediator requests all relevant documents: bank statements, property deeds, donation records, and minutes of meetings. The Hong Kong Mediation Ordinance (Cap. 620, s. 8) provides that communications in mediation are confidential and inadmissible in court. This protection encourages full disclosure.

Step 2: Mediator evaluation. The mediator prepares a written evaluation of the likely court outcome if the case proceeds to trial. This evaluation is not shared with the parties in advance. Instead, the mediator presents it during a joint session. The evaluation must be based on legal principles, not the mediator’s personal opinion. For example, “Under the High Court Ordinance, the court would likely order an account of all donations made to the church building fund since 2020, and any misappropriation would be recoverable.”

Illustrative case: A Buddhist temple in Sha Tin held a collection of antique statues donated by a deceased member’s family. The temple’s board and the donor’s family disagreed on whether the statues were a gift to the temple or a loan for display. The family filed a claim in the Court of First Instance for return of the statues. The judge ordered mediation. The evaluative mediator—a barrister with expertise in property law—assessed the evidence. The donor’s will made no mention of the statues. The temple had possession for over 10 years. Under the Limitation Ordinance (Cap. 347, s. 4), any claim for recovery of goods must be brought within 6 years. The mediator’s evaluation concluded that the family’s legal position was weak. The parties settled: the temple paid the family HK$200,000 as a goodwill gesture, and the family dropped the claim. The settlement was recorded as a consent order.

Step 3: Tax and regulatory implications. For religious groups that are registered charities under the Inland Revenue Ordinance (Cap. 112, s. 88), any settlement involving financial payments may affect their charitable status. The mediator should advise the parties to consult a tax advisor. The Hong Kong Mediation Code (2024, para. 6.1) requires the mediator to ensure that parties are aware of any legal or regulatory issues that may arise from the settlement.

Model 3: Transformative Mediation for Membership and Personal Conflicts

Transformative mediation focuses on improving the relationship between the parties rather than achieving a specific settlement. This model is useful for disputes that involve personal grievances, allegations of misconduct, or membership disputes.

Step 1: Empowerment and recognition. The mediator helps each party articulate their own perspective (empowerment) and then encourages them to acknowledge the other party’s perspective (recognition). The goal is not agreement but mutual understanding. The Hong Kong Mediation Code (2024, para. 3.1) defines the mediator’s role as “facilitating communication and promoting voluntary decision-making.”

Step 2: No settlement required. Unlike facilitative or evaluative mediation, transformative mediation does not require a written settlement. The parties may leave the session without a formal agreement. However, the process often leads to informal resolutions: a letter of apology, a change in behaviour, or a commitment to future communication.

Illustrative case: A Catholic parish in Causeway Bay experienced a conflict between the parish priest and a group of parishioners over the priest’s management style. The parishioners complained to the bishop. The bishop referred the matter to a mediation service run by the Catholic Diocese of Hong Kong. The mediator—a trained social worker with mediation accreditation—used transformative techniques. Over three sessions, the priest acknowledged that his management style had caused distress. The parishioners acknowledged that the priest was under pressure from the diocese to meet financial targets. No formal settlement was signed, but the priest agreed to hold monthly open forums with parishioners. The conflict did not escalate further.

Step 3: Referral to external authority. If the transformative mediation fails to resolve the dispute, the parties may still need to seek a binding outcome. For membership disputes, the church’s internal disciplinary process may be the appropriate forum. For allegations of misconduct, the parties may need to report to the police or the Independent Commission Against Corruption (ICAC). The mediator must not give legal advice on this step but can provide information about available resources.

Practical Considerations for Mediating Religious Group Disputes

Venue and neutrality. The mediation should be held at a neutral venue, not on church premises. The Hong Kong Mediation Centre (HKMC) offers facilities for HK$1,500 per session (2024 fee schedule). The mediator should have no prior relationship with any party.

Confidentiality and privilege. The Mediation Ordinance (Cap. 620, s. 8) provides that mediation communications are not admissible in court. This protection does not extend to evidence of criminal conduct. If a party discloses a crime during mediation, the mediator may have a duty to report to the police.

Costs. The cost of mediation varies. A typical facilitative mediation session costs HK$5,000 to HK$15,000 for a half-day session. The parties usually share the cost equally. The court may order costs against a party that unreasonably refuses to mediate (Practice Direction 6.1, para. 8).

Cultural sensitivity. Religious groups in Hong Kong include Christian, Buddhist, Taoist, Muslim, Hindu, and Sikh communities. The mediator should be aware of cultural and religious sensitivities. For example, in Muslim communities, the mediator should ensure that the session does not conflict with prayer times. In Buddhist communities, the mediator should avoid scheduling sessions on important festival days.

Takeaway

1. Mediation is the preferred ADR method for religious group disputes in Hong Kong because it keeps spiritual matters within the community while providing enforceable outcomes for civil elements.
2. The court procedure is to stay litigation and refer the matter to mediation; a party that unreasonably refuses to mediate may face adverse costs orders.
3. Facilitative mediation works best for governance disputes; evaluative mediation for property and financial disputes; transformative mediation for personal and membership conflicts.
4. The Mediation Ordinance (Cap. 620) ensures confidentiality of mediation communications, but this does not cover criminal conduct.
5. Religious groups should include a mediation clause in their constitutions and donation agreements to reduce the risk of costly litigation.

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