EMQ » October–December 2018 » Volume 54 Issue 4
[memberonly folder=”Members, EMQ2YearFolder, EMQ1YearFolder”]Theresa Sidebotham, Esq. and Jessica Ross, Esq.
Note: This resource is for informational purposes only and may not apply to a given place, time, or set of facts. It is not intended to be legal advice and should not be acted upon without specific legal advice based on the particular situation.
Mission leaders should be prepared to handle kidnapping, injury, or death of personnel, especially when working in high-risk areas. Incidents are inevitable. First, missionaries should have a good theology of suffering. Beyond that, best practices in training and preparation can improve outcomes and minimize damage for some of these situations. When a crisis happens, effective ways of handling the crisis and aftermath can also make a difference. For many of these steps, outside experts can help, whether security trainers, crisis management consultants, hostage negotiators, psychological experts, public relations consultants, or legal counsel. While no strategy can reduce risk to zero, the following best practices can further the mission and help build a safer, more prepared organization.
Understand and Embrace the Theology of Suffering
Mission work has always been dangerous. The Apostle Paul insisted on continuing his missionary journeys, saying that he was ready not only to be bound, but also to die.[1] Most of the early apostles were martyred. Moving to more modern times, so many missionaries died in Africa that it was called the “white man’s grave.” The pages of mission history are bloody with stories of illness and death suffered while spreading the Gospel.
But Westerners live in a culture where we expect to stay safe and to be protected. The initial challenge in preparing for crisis is to address thinking errors and help people have a correct theology. Are missionaries willing to acknowledge with Dietrich Bonhoeffer that “when Christ calls a man, he bids him come and die?”
Assess Risks and Prepare People Mentally for the Reality of the Situation
Once the organization has addressed suffering in general, get specific. Being frank with missionaries about the risks in each case can help manage expectations. First, the organization itself must be realistic about current risks. Then it must ensure that people planning to serve in high-risk areas fully understand what they are taking on. This helps prepare the right people to accept a potentially dangerous calling.
Practically, this conversation can be a part of the training and commissioning of a missionary for service in the field. It can be accompanied by a formal written agreement that the missionary understands the risks and desires to enter the field nonetheless. Missions to dangerous areas can be presented as possibly involving martyrdom.
Though courts usually disfavor waivers where employees assume the risk of their employment to limit liability to the organization, this may well be different in the missions context. As religious ministers, missionaries should have greater leeway to voluntarily agree to take on the risk of injury or death in order to spread the gospel as part of their own free exercise of religion. This makes the missionary employee unique. It is also a theologically sound approach.
Such an understanding may not be possible for short-term personnel. A full-time, adult missionary on a long-term assignment will be regarded differently than the teenager spending a week on a short-term mission trip, or even adults coming overseas briefly. A short-term visitor does not have the cultural background to understand the risks in the same way. Waivers may still be used for short-term trips, but may or may not be effective depending on the circumstances. The mission should consider carefully where to allow short-term visitors—especially minors—contingent on current risks.
A frank conversation (and documentation) about the risks will not extinguish the risk of liability, but it goes a long way toward combatting any argument that the mission agreed to keep the missionary one undred percent safe 24/7. Both the mission and the missionary should understand these limitations. Explaining that the risks are real, and that protection cannot be guaranteed, may not prevent a lawsuit, but it makes one harder to bring.
Provide Security Training and Resources
Organizations must prepare people for the inevitability of a crisis, which is also the single most important action to minimize liability. Advance training will likely be needed to clarify and prepare for risks. Security or hostage training and good security protocols can make a kidnapping or other crisis less likely, as well as improve outcomes.
Several excellent crisis management consultants and training programs are available to prepare personnel for work in dangerous areas. In addition to training, the mission should work on safety. For instance, the mission might include very detailed briefing on the dangers present in a particular country and how to keep safe on the trip, or put in place parameters regarding exploring dangerous areas.
Training and providing resources for protection abroad helps prevent the argument that the sending agency is responsible for placing the employee in danger, or that the employee did not understand the risk. Document any training provided, as well as what security protocols are in place to ensure safety while personnel are in dangerous areas.
If a crisis does occur, documentation of training performed and the security protocols in place can protect the organization later from the claim that it didn’t do enough to prevent the crisis. For example, in one case, when a senior-level employee was kidnapped in Colombia, he later tried to sue the owner of the subsidiary where he worked. His claim got dismissed, in part because of the extensive security training provided by the company.[2] In addition to security training, and having a crisis management team available for consultation, the employee had every resource at his disposal to implement additional security measures (he was the CEO equivalent of the subsidiary). He failed to use these resources, to his own detriment.[3] Security training and protocols have the double benefit of keeping people safe and showing that the organization acted reasonably.
Develop and Implement a Crisis Management Policy
Crises, particularly those involving kidnapping or serious threats against personnel abroad, create intense pressure. Decisions made in the heat of crisis may later be examined microscopically in court. Before a real crisis develops, organizations should plan in light of the on-ground situation.
Agencies should evaluate risks and develop situation-specific security protocols for each region where threats may exist, perhaps with the assistance of a crisis management consultant. Protocols should be developed not only for long-term assignments, but for short-term missions as well. Consider legal review for best practices and potential liability.
Every mission organization facing overseas risks should have a clear crisis management policy that is well-known to those who need to implement it in the event of a crisis. The policy should include at least the following points:
- The agency’s position on negotiating or paying ransom;
- How the crisis management team is formed and who the members are, including any outside professionals such as hostage negotiators or legal counsel;
- Evacuation authority and plans for medical or high-risk situations (and what happens if people refuse an evacuation directive);
- How to finance a crisis situation with bank accounts or hidden supplies of cash or gold;
- How to control information during a crisis and inform the correct people;
- What to do in specific situations, such as when a staff person is arrested, kidnapped, murdered, or taken hostage, or if someone is sexually assaulted;
- Guardianship and temporary care for children; and
- Contingency plans, both at the field and individual level, to safeguard persons, secure property, and preserve the ministry.
Once the mission has global and regional plans, it should be sure all missionaries understand their portion of the plan, who the points of contact are, and how the organization will handle the crisis. Everyone must understand practical details such as: how to use GPS tracking devices in case of emergency; what funds are available to individuals or a field in the event of a triggering occurrence and how the funds can be accessed; and how to leave the country.
Train on the crisis management plan and general security protocols. Training and policies should be adequate, and they must be realistic, meaning that they can be followed every time. Training regimes or policies that look good on paper, but are confusing or not followed in practice, can be more of a liability than an asset. Create policies and follow them.
Take Steps to Allow the Agency to Participate in Managing a Hostage Situation
The ability of the mission to negotiate or take effective action in the event of a hostage crisis requires honest conversations and advance planning. A mission agency should not assume that its missionary’s interest in a hostage situation would align with its own. The reality is that negotiating in the “best interest” of an individual missionary, including ransom payment, could severely jeopardize the position of other missionaries (who are then seen as a potential source of income) or the mission’s presence in the country (depending on the government position). For this reason, some agencies take a no-ransom position.
Conversations about this potential conflict of interest should take place in advance as part of a comprehensive training before the missionary is on the field. It may be necessary to take the position that no one will be sent without agreeing on a policy that benefits the work of the mission as a whole, whether short-term or long-term. This may limit the placement of certain people and also the use of short-term teams. There should be serious discussions about whether certain locations are appropriate for deploying families or those who have dependent children.
Even if the missionary is fully on board, others could resent and object to the mission’s role as chief negotiator in a hostage situation, or the interests of the mission being weighed to the detriment of the hostage. Different interest groups may be involved—family members, the government, or a sending church. Current U.S. policy for U.S. citizen hostage situations abroad designates family members or next-of-kin as the default primary point of contact for the government’s involvement and assistance, and the Hostage Recovery Fusion Cell works with family members.[4] In some circumstances, this may result in the mission lacking the power to participate in hostage negotiations, let alone have a final say—even if that would be the desire of the missionary involved. In other cases, differing interests have led to organizations being sued for conducting negotiations in a way that does not prioritize the best interests of the hostage or the hostage’s family.
The mission would like to have a seat at the planning table and to be involved with hostage negotiations. One possible approach is to have the missionary complete a statement of intent outlining his or her wishes vis-à-vis hostage negotiations in the event he or she is taken captive while on the field. Such a statement might specify that the missionary desires that the mission have a seat at the table in any negotiations, whether or not the U.S. government is involved. The statement could also address the missionary’s understanding of, and agreement to, the priorities in the event of his or her capture; aspects of the negotiations; the mission’s policy on ransom and rescue attempts; and disclosure of information to others. Such a statement would not be legally binding on the missionary or third parties such as the U.S. government, but it would make clear the missionary’s wishes in the event of a crisis, which makes it more likely that the wishes would be respected.
Create a Plan That Includes Insurance to Fairly Compensate or Care for Survivors
People file lawsuits when they are angry or desperate. If a person has endured a crisis and does not feel like the mission cares or feels in some way that he or she has been used, discarded, or pushed aside, the bitterness generated may trigger legal action. Or if a person has overwhelming needs and no financial way to meet them, a lawsuit may seem to be the only option. Good pastoral care and good financial care are both important to help people move on in a positive way, rather than take an approach like litigation that is destructive both to themselves and the organization.
A better approach is to set up a system in advance where a person’s legitimate needs will be addressed outside of litigation. This care can take a variety of forms, including providing psychological treatment, financial compensation when the employee is unable to work after a crisis, or retraining for another position. In some situations, the missionary or the family may not be mentally prepared to return to the field. The mission can offer services for a transition to a different life.
Insurance coverage can sometimes provide for financial care after a crisis situation. Organizations with higher levels of risk should seriously consider these additional avenues of insurance coverage. An overseas workers’ compensation plan is a possibility. If used, it should be coupled with a contractual agreement that the insurance will operate like U.S.-based workers’ compensation, in that it is a sole remedy for injuries. Some other provision for disability coverage should exist for situations not covered by workers’ compensation. Some organizations will purchase Kidnap and Ransom (K&R) insurance, though these policies must be kept very confidential so that the organization is not thereby made a target.
Liability insurance should be reviewed carefully to make sure that all kidnappings will be covered (rather than excluding kidnappings that are acts of war, for instance). Short-term insurance is available for short-term trips. Various riders are available for diverse types of emergencies. Health insurance should include medical evacuations and needed long-term care. Organizational coverage should be broad enough to cover volunteers, accompanying family, and independent contractors. Individual employees should be encouraged (or required) to carry adequate insurance to meet their responsibilities, such as to children.
Finally, organizations and their employees can agree in advance that if they ever disagree about compensation or other issues, their religious beliefs mean that they will handle differences through Christian alternative dispute resolution, such as mediation or binding arbitration, rather than a lawsuit. Arbitration agreements have been enforced, even to deal with who should be responsible after a crisis.[5] A Christian arbitration agreement is likely even more enforceable than a regular arbitration agreement, as it flows from the organization’s and workers’ religious beliefs.
Conduct Internal Investigations and Strategic Planning Meetings
Often, before there is a full-blown crisis event, there are earlier warnings, with potential situations that blow over. These incidents may happen in one’s own or other organizations. Rather than dismissing them as “no real problem,” agencies should use similar situations that do not “blow up” to refine the crisis plan. In addition to actual incidents, complex mock scenarios can also be used, as is common in Armed Forces training.
Real or simulated incidents can be a learning tool. An internal inquiry can investigate how well a situation was handled. Alternatively, it can trigger an audit of the organization’s crisis plans, and how effective they would be in a similar situation. A crisis investigation or audit can be done internally but will likely be higher quality if executed with external consultants, such as an attorney or crisis management consultant or both. The outcome of the audit may include practice drills to make sure everyone understands the company’s policies. This type of preparation becomes a dry run for a crisis and may make responses much faster and smoother. While expensive, investigations and audits may help organizations avoid lost time, grief, and legal liability later.
Have a Media Plan That Includes Statements Being Reviewed for Potential Liability
Crisis situations can be as sensational as they are tragic and controlling the flow of information and the message communicated is often crucial to proper crisis management. The mission should already have a broad media plan in place to ensure a unified message and guide how the organization speaks to third parties. This is especially important in a crisis situation. If media attention is likely to be widespread, it is best to work with a media consultant.
In addition to following protocols for media within the organization, try to get buy-in for a unified strategy with other stakeholders, such as extended family, who may also be asked questions by the media. If possible, others can be encouraged not to answer questions or speak about sensitive information, such as hostage negotiations.
When the mission does issue a statement about a crisis, whether during or after one has occurred, it should consider the potential impact such a statement may have on both the crisis at hand and potential future litigation. It is best practice to have legal counsel review any statements for potential impact on organizational liability.
Conclusion
Because of a fallen world, death, destruction, and evil will happen in this life. The question is not whether an organization will experience a crisis, but when and in what form. By taking crisis management seriously, organizations can protect their people and help them recover from devastating events. Secondarily, but also important, it can help them avoid legal liability in the event that something goes awry.
Theresa Lynn Sidebotham, Esq., is an attorney with Telios Law and member of Beyond. She was a missionary kid and missionary in southeast Asia. Theresa is legal counsel to numerous missions, addressing multiple values of improving organizational/human resource policy in the cross-cultural context, supporting religious liberties, investigating effectively, caring for victims and members, and minimizing litigation exposure.
Jessica Ross, Esq., joined Telios Law PLLC as an attorney in 2014, after serving as a judicial law clerk in the Colorado state appellate courts. In her practice at Telios Law, Jessica focuses on complex constitutional briefing, religious law, litigation, and appeals. She has written on religious exercise rights of employers and employees for the Colorado state bar journal and has presented on appellate practice.
Endnotes
[1]Acts 21:13.
[2] See, e.g., Curtis v. Beatrice Foods Co., 481 F. Supp. 1275, 1290-91 (D. NY 1980).
[3] See id.
[4] Executive Order 13698: Hostage Recovery Activities, 80 Fed. Reg. 37131 (Jun. 29, 2015), available at https://obamawhitehouse.archives.gov/the-press-office/2015/06/24/fact-sheet-us-government-hostage-policy.
[5] See, e.g., Blackwater Sec. Consulting, LLC v. Nordan, No. 2:06-CV-49-F. (E.D. N.C. Jan. 21, 2011) (arbitration agreement in service agreement enforceable after contractors were murdered abroad while working for private security contractor).
