Superior Court Jurisdiction in Property Tax Appeals


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Is there Superior Court Jurisdiction in Property Tax Appeals to Binding Arbitration Under O.C.G.A. Section 48-5-311(f)?
by Jon M. Ripans, Esq., Appraiser, Arbitrator/Mediator Georgia County Property Tax Hearing Officer Expert Witness

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Superior Court Jurisdiction in Property Tax Appeals

  1. 1. DR Currents A Publication of the Dispute Resolution Section of the State Bar of Georgia Summer 2012From the Chairby Hal GrayI hope that all of our Section members have circled become deeply familiar with the process. The Arbitration August 10 on their calendars and are planning on Institute provides aspiring arbitrators an excellent attending the Sixth Annual Arbitration Institute at the opportunity to see what arbitration really is, while atBar Center. As in the past, this Institute is co-sponsored by the same time providing “old war horse” arbitratorsthe State Bar DR Section and ICLE. information on current topics and techniques to improve their own arbitration practices. I urge both groups to attend Institute Co-Chairs Robbie Dokson and John Allgood our Institute in August, and I deeply thank Robbie andhave done an excellent job of finding “new” speakers John for all of their hard work and dedicated service to thefor the program - included are out-of-state and first-time Section.speakers Professor Tom Stipanowich of the Strauss Instituteat Pepperdine University, Neil Currie of the American I wish all of our members a most enjoyable rest-of-the-Arbitration Association and Doug Shontz of The RAND summer!Corporation. Robbie and John have likewise assembled My best regards.a first-rate group from the Atlanta area, including bothretired U.S. 11th Circuit Court Judge Stan Birch and Fulton County Senior Judge Phil Etheridge. Hal The Institute will address several current “hot topics” Hal Gray is the Managing Partner of Ragsdale, Beals, Seigler,(if anything related to arbitration can truly be called a Patterson & Gray, LLP. A graduate of the Emory University“hot topic”) such as consumer arbitration, e-discovery School of Law, he has practiced construction law and commercial and real estate litigation in Atlanta for over thirty years. He hasissues and class-action waivers. We’ll receive a report been a member of the AAA Mediation and its various Arbitrationregarding the first Atlanta International Arbitration Society Panels for twenty-five years and regularly works as a mediatorConference that was held in January as well as the future and arbitrator in construction and commercial disputes. Halof international arbitration in Atlanta. Additionally, currently serves as the Chair of the State Bar Dispute Resolutionethics/disclosure considerations will be addressed, as will Section and the Boards of Directors of the Construction Lawarbitration clause drafting, best and worst practices in and Dispute Resolution Sections of the Atlanta Bar. He is aarbitration and advocates’ and arbitrators’ views of each Fellow of the College of Commercial Arbitrators and a memberother - all-in-all, a little something for everybody. of the Georgia Arbitrators’ Forum and the Georgia Academy of Mediators and Arbitrators. Many people ask me “How can I become anArbitrator?” I tell them that one of the first steps is to Contents Neutrals: Pioneers of a New Frontier.......................................................................................................... 3 Is There Superior Court Jurisdiction in Property Tax Appeals to Binding Arbritration Under O.G.C.A. Section 48-5-311(F)?........................................................................................................ 4 Mediating Criminal Cases in Georgia.......................................................................................................... 6 Gender Bias in Mediation............................................................................................................................ 8 Manage Conflict; Don’t Just Wait to Resolve Disputes............................................................................. 11
  2. 2. Neutrals: Pioneers of a New FrontierBy Bob Berlin & Carolyn L. RainesW hat is it that pushes us into new frontiers? Many of our courts are struggling with the ability to Curiosity? Of course! Like the mountain that efficiently move cases through the processes. Supreme loomed in front of us, the depth of the ocean Court of Georgia Chief Justice Carol Hunstein haswith its ebb and flow, the vastness of space where planets indicated that our judicial system is nearing a crisis. “… inand stars light the way, we have an innate curiosity to ask, recent years, the erosion of budgets in the face of growingwhat’s there and beyond? Is there a curiosity for “what’s caseloads has put us perilously close to being unable tonext” in the conflict resolution arena? You bet! You can be fulfill our constitutional mandates.” .a pioneer into a new frontier. There are answers, one we are calling a parallel justice Few of us are aware of the origin of the acronym ADR. system, which will free up our judicial system and keep itWe are quick to say Alternative Dispute Resolution. The moving like a well-oiled machine. Two of the processesoriginal word was discontinued in favor of Alternative that can be employed are, most likely, somewhat familiarto invite the legal/court system to entertain, use and, to you; i.e. Arbitration and Mediation. Less familiar arehopefully, incorporate the named processes as additional the hybrids: Med-Arb (Mediation and, if some issue(s)offerings. The original word was and is returning to the remain unresolved, submit those to Arbitration.); Arb-Medparlance. It is Appropriate Dispute Resolution. (Arbitrate the irresolvable and mediate the balance.) Let’s consider the words Appropriate (Adj. suitable There are other processes that have great potentialor fitting for a particular purpose, person, occasion.) and as well; i.e. Private Judging, Summary Jury Trials, Mini-Alternative (Adj. affording a choice of two or more things, Trials, Game Theory and many others. Let’s look at a fewpropositions, or courses of action.) case examples. Take a personal injury case. Question: Who had the red light? Both parties are pointing their finger at With the public demanding better and more affordable the other. An Arbitrator or Petit Panel (3 arbiters) hearsservices, should we respond with alternative processes each party’s case and makes a decision as to ‘who had thethat are more appropriate for the conflict and/or conflicted red light.’ Once that determination is made, the parties areparties? Let’s take the sage advice of Professor Frank E. then able to make a more definitive decision as to a nextA. Sander, Harvard Law School, “Let’s fit the forum to the step, if any.fuss; not the fuss to the forum!” 2 DR Currents
  3. 3. Another example is the Domestic Relations case where As president of The New Decision Management Associates, Inc.parties have settled (in mediation) all issues except the Berlin has primary responsibility for Mediation, Negotiation, anddivision of personal property. An arbitrator can be called Arbitration services as well as Lead Trainer. He has experienceupon to listen to each party tell what they want and why, in handling in excess of 4200 civil and family law mediations since 1968. He is a graduate of the Walter F. George School ofmake an award (decision) and the issue is resolved. Law, Mercer University, receiving the LLB (J.D.) in 1963 and And the options don’t end there! Let’s list a few others was a senior partner in the law firm of Berlin and Hodges, P.C.(and, be aware, this is a partial list): for 39 years. He served as a Municipal Court Judge for 25 years. Bob served in the Georgia House of Representatives. His is an Different Arbitration Processes (Binding, Non- approved Mediator for the United States Postal Service, EEOC,Binding, High/Low, Baseball, Night Baseball); Silver and the FBI. Berlin presently serves on the Advisory CommitteeBullet Mediation; Conciliation; Neutral Evaluation; and, of the Training & Credentialing Committee of the Georgiathe tried and true ‘flip of the coin’ to name a few. Most of Commission on Dispute Resolution.the aforementioned processes guarantee confidentiality,efficiency and are economically advantageous. Many of As CEO of The New Decision Management Associates, Inc.the processes outcomes can, if needed, be submitted to the Raines is responsible for the operations, management and Co- Trainer. A graduate of Middle Georgia College she is a registeredcourts for enforcement without running the risk of appeal Mediator with the Georgia Office of Dispute Resolution, and hasand review. mediated large group conflicts on a national level. She comes All of this speaks to efficiency, economy and lots of to The New DMA from the non-profit sector with expertise incareer opportunities for neutrals. corporate management, institutional performance assessment, fund development, and behavior analysis. She currently serves on Who is available to perform these functions? Many the Citizen’s Panel Review Board for the Bibb County Juvenilefully trained and qualified Neutrals (Arbitrators, Mediators Court.and Case Evaluators, etc.) want and, in fact, are eagerto contribute. They left mediation or arbitration training (Endnotes) 1. 2012 STATE OF THE JUDICIARY ADDRESS THE HONORABLEthinking, “I can make a difference in this world. This is CHIEF JUSTICE CAROL HUNSTEIN Supreme Court of Georgia ,fulfilling my purpose in life.” Now’s the time to fulfill your House Chambers, Georgia State Capitolpurpose by becoming a true pioneer in our progress towardhelping the world become a more peaceful place. Dispute Resolution Executive Committee Herbert H. Gray III, chair Phil Armstrong, At-Large Taylor Tapley Daly, vice chair Bobby Glenn, At-Large Joan Grafstein, secretary/treasurer John Hinchey, At-Large Adam Sutton, DR Currents Editor Larry Christensen, At-Large John Sherrill, immediate past chair Ray Chadwick, At-LargeSummer 2012 3
  4. 4. Is There Superior Court Jurisdictionin Property Tax Appeals to BindingArbritration Under O.G.C.A. Section48-5-311(F)?By Jon M. RipansU nder current Georgia law, property tax assessments superior court of the county where the land lies can be appealed in one of four ways. One is rather than the court itself. The court itself has directly to Superior Court with the approval of the no jurisdiction of the matter, but the judge of thatcounty Board of Tax Assessors. This appeal route clearly court has jurisdiction, but only an administrativevests the Superior Court with jurisdiction over the appeal. jurisdiction to appoint the third arbitrator. *554The three other methods remain at the administrative level. The person holding the office of judge is the oneThey are appeal to: 1) Board of Equalization, 2) County designated to do the appointing, not the courtHearing Officer, or 3) to Binding Arbitration. itself acting through the judge. No judicial power is conferred.2 Of those three, the latter has caused some confusionover filing fees, Superior Court settlement calendars, The second reason is that O.C.G.A. Section 48-5-judicial confirmation or other disposition of the arbitration 311(f) provides that upon receiving a demand for appeal toaward, and, most recently, Sheriff’s service of process binding arbitration, the board of tax assessors shall have tenfees. There are a number of reasons to believe that appeals days to provide the taxpayer with 1) an acknowledgementof property tax assessments to binding arbitration do not of the demand for binding arbitration and 2) notice thatconfer any jurisdiction to the Superior Court. the taxpayer shall have 45 days to provide a certified appraisal and “a confirmation of the amount of the filing First, O.C.G.A. Section 48-5-311(f), which governs fees, if any, required under Code Section 15-6-77 andproperty tax assessment notices appealed to binding notice that within 45 days the taxpayer shall pay to thearbitration, provides: clerk of the superior court the fees.” Superior Court civil If the parties cannot agree on the single arbitrator, action filing fees have been part of O.C.G.A. Section 15- the arbitrator shall be chosen by the chief judge 6-77 for years and no reasonable person would expect that of the superior court of the circuit in which the the Georgia Legislature is going to do away with them property is located.1 any time soon, particularly not during a time of state and In Board of Tax Assessors of Muscogee County v. local budget crises. So, why did the Legislature includeHeard, 118 Ga. App. 550 (1968), the Georgia Court of the phrase “if any” in O.C.G.A. Section 48-5-311(f)? If itAppeals considered the appointment of a third arbitrator were meant to be the typical superior court filing fees, theunder Code Section 92-6912, “relating to the arbitration of Legislature would have simply referenced the code sectiondisputes between the taxpayer and boards of tax assessors.” that contains the filing fee, as it has in so many other codeThat statute provided that once the taxpayer and the board of sections.3 Instead, it referred to O.C.G.A. Section 15-6-77tax assessors named their respective arbitrators, then the third with the conditional phrase “if any,” and that code sectionarbitrator “shall be named by the judge of the superior court makes no specific provision for filing fees for bindingof the county wherein the property lies” if neutrals selected arbitration of property tax appeals. The assignment ofby the parties cannot agree on a third arbitrator. The Court of a civil action file number can simply be viewed as anAppeals ruled that the appointment of the third arbitrator by administrative mandate to make sure the whole file does notthe judge of the Superior Court does not empower the judge get lost in a adjudicate any other matters, such as the qualifications The third reason is that O.C.G.A. Section 48-5-311(f)of any arbitrators, because the appointment of the third does not provide for service of process by the Clerk ofarbitrator itself does not confer any jurisdiction upon the Superior Court. Instead, the statute speaks of the boardSuperior Court. The Court of Appeals wrote: of tax assessors 1) certifying papers to the Clerk of It will be noted that the appointment of the third Superior Court and 2) simultaneously serving all papers arbitrator must be made by the judge of the and information certified to the clerk upon “the taxpayer 4 DR Currents
  5. 5. and the taxpayer’s attorney of record, if any, or employee InstItute of ContInuIng LegaL eduCatIon In georgIawith a copy of the certification along with any other papers Friday • august 10, 2012specified by the person seeking arbitration along with the 6th ANNUALcivil action file number assigned to the appeal.” The fourth reason is that conferring jurisdiction ARBITRATIONupon the Superior Court raises a host of inconveniencesfor taxpayers, tax assessors, county attorneys, taxpayer INSTITUTE 6 CLE Hours includingattorneys, judges, staff attorneys, sheriffs, and others in 1 Ethics Hour • 1 Professionalism Hour • 3 Trial Practice Hoursconnection with service of process, settlement calendars,and possibly judicial confirmation. Co-sponsored by: statE Bar OF gEOrgia hEadquartErs dispute resolution 104 Marietta Street NW • Atlanta, Georgia 30303 So, why did the Legislature involve the chief judge section, for dirECTioNs PlEAsE VisiT HT TP://w w state bar of georgiaof the Superior Court at all if the parties could not agree To make hotel room reservations, call: Embassy Suites phone: 1-800-Hilton • The Glenn phone: 404-521-2250 Hilton Garden Inn phone: 404-577-2001 • The Omni phone: 800-843-6664upon a property tax arbitrator? My guess, based upon the Ask for the State Bar of Georgia’s negotiated corporate rate.nature of the dispute and the predecessor statutes, is that Duplicate registrations may result in thrEE ways tO rEgistEr: check the ICLE schedule on the web at www.iclega.orgthe Legislature wanted the authority to appoint the property Mail: ICLE • P.O. Box 1885 • Athens, GA 30603-1885 (make check payable to ICLE) Fax: 706-354-4190 (credit card payment must accompany fax to be processed) multiple charges to your account. A $15 administrative fee will apply to refundstax arbitrator to be vested in someone who would be Online: (credit card payment only) required because of duplicate registrations. © 2012 Institute of Continuing Legal Education in Georgia Questions? Call ICLE Atlanta Area: 770-466-0886 • Athens Area: 706–369–5664 • Toll Free: 1–800–422–0893perceived as sufficiently neutral, would not be so detached arBitratiON iNstitutE • August 10, 2012 • 8017as to appear not to be local (such as the Department of NAME ____________________________________________________ GEORGIA BAR # ____________________Revenue), would carry some authority, and would not be FIRM/COMPANY ____________________________________________ vEMAIL __________________________________________________ OFFICE PHONE (________) ___________ (for registration confirmation and email notificationseen as imposing requirements and obligations that were of seminars, no postcard or brochures will be sent) MAILING ADDRESS __________________________________________ ZIP + 4 ________- ______not meant to apply, such as by having the Georgia Real STREET ADDRESS (for UPS) ___________________________________ ZIP + 4 ________- ______ CITY ________________________________ STATE ________________ EarLy rEgistratiON FEE: $165Estate Commission and Appraisers Board be responsible q i am sight impaired under the ada, and i will contact iCLE immediately to make arrangements. ON-sitE rEgistratiON FEE: $185for appointing Certified General Real Property Appraisers q q q I am unable to attend. Please send written materials and bill me for the cost of materials only. Sorry, no phone orders! I have enclosed a check for the early registration fee received 48 hours before the seminar. I authorize ICLE to charge the early registration fee to my q MASTERCARD q VISA q AMERICAN EXPRESS*and Certified General Residential Appraisers as arbitrators.4 Account # / Credit Card Verification Number: A three-digit number usually located on the back of your credit card; *AmEx is four-digits on the front of the card. Expiration Date: Signature:Copyright 2012 by Jon M. Ripans. All Rights Reserved.A longer version of this article can be found at www.valuationmatters.netand at AGENDA The registration fee for all seminars held at the State Bar of Georgia has been reduced by ICLE in recognition of the Bar’s service to Georgia attorneys. Jon M. Ripans is a Certified General Real Presiding: Robert N. Dokson, Program Co-Chair, Ellis Funk, P.C., Atlanta John F. Allgood, Program Co-Chair, Ford Harrison, LLP, Atlanta Property Appraiser, Member of the State Bar 7:45 REGISTRATIOn AnD COnTInEnTAL BREAkFAST 10:45 THE ARBITRATIOn CLAUSE: MORE THAn An of Georgia, Registered Neutral (Arbitration and (All attendees must check in upon arrival. A jacket or sweater is recommended.) AFTERTHOUGHT (OR IT SHOULD BE!) Moderator: Patrick G. Jones, Henning Mediation & Arbitration Service Inc.; Friend, Hudak & Harris LLP, General Mediation) with the Georgia Office of 8:20 OPEnInG REMARkS Herbert H. “Hal” Gray, III, Chair, Dispute Resolution Atlanta Panelists: Dispute Resolution, Secretary to the Property Section, State Bar of Georgia; Ragsdale Beals Seigler Patterson & Gray, Atlanta Patricia G. Butler, Assistant General Counsel, Turner Broadcasting System, Inc., Atlanta Tax Subcommittee of the Real Property Law 8:25 WELCOME AnD PROGRAM OVERVIEW Douglas Shontz, The RAND Corporation, Arlington, VA A study of corporate counsel’s attitudes and Robert N. Dokson perceptions of commercial arbitration. Section of the State Bar of Georgia, and a John F. Allgood 11:45 LUnCH (Included in registration fee) Georgia property tax arbitrator and Georgia 8:30 IS ARBITRATIOn BROkEn AS A FAIR FORUM FOR THE LITTLE GUY? 12:15 BEST AnD WORST PRACTICES In ARBITRATIOn:property tax County Hearing Officer. Jon also serves as a COnSIDERInG THE ARBITRATIOn FAIRnESS SEASOnED ADVOCATES’ VIEWS On ARBITRATORS AnD VICE VERSA InDEx Hon. Philip F. Etheridge, Senior Judge, Superior Court,commercial real estate appraiser and expert witness, and also as Thomas J. Stipanowich, Professor, William H. Webster Chair in Dispute Resolution, Pepperdine University Fulton County, Atlanta Thomas J. Gallo, Barnes & Thornburg LLP, Atlantaa property tax advocate under various fee arrangements. He has School of Law, Malibu, CA Linda A. Klein, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Atlantagiven presentations to the American Bar Association, Institute for CHALLEnGES AnD OTHER VIEWPOInTS Laura J. Stipanowich, Sutherland Asbill & Brennan LLP, Robert N. Leitch, Arbitration Mediation and Training, Decatur AtlantaProfessionals in Taxation, the Georgia Department of Revenue, An OVERVIEW OF COnSUMER ARBITRATIOn 1:15 BREAkOUT PAnELS On ARBITRATIOn SUBJECTS (Choose One)and at Georgia State University School PROPOSED REGULATIOnS Neil B. Currie, Vice President, American Arbitration MAnAGInG ELECTROnIC DISCOVERY In Association, Los Angeles, CA InTERnATIOnAL AnD DOMESTIC ARBITRATIOn Taylor Tapley Daly, Nelson Mullins Riley & Scarborough MAnDATORY ARBITRATIOn IS UnFAIR LLP, Atlanta(Endnotes) Roy E. Barnes, The Barnes Law Group LLC, Marietta Valerie S. Sanders, Sutherland Asbill & Brennan LLP, Atlanta1. O.C.G.A. Section 48-5-311(f)(3)(B)(i). 9:45 InTERnATIOnAL ARBITRATIOn In ATLAnTA, nEW AnD ExCITInG DEVELOPMEnTS John A. Sherrill, Seyfarth Shaw LLP, Atlanta2. Board of Tax Assessors of Muscogee County v. Heard, 118 Ga. App. Glenn P. Hendrix, President, ATLAS; Arnall Golden Gregory LLP, Atlanta CLASS ACTIOn WAIVERS, THE FAA, THE nLRB AnD THE COURTS—WHICH VIEW WILL PREVAIL? 550 , 552-553 (1968) (citations omitted). Peter B. “Bo” Rutledge, Professor, University of Georgia School of Law, Athens Kerstin I. Meyers, The National Labor Relations Board, Atlanta3. See, e.g., O.C.G.A. §§ 9-12-94, 9-12-135, 9-14-20, 9-15-4, 17-7-91, Brian A. White, King & Spalding LLP, Atlanta Jeffrey D. Mokotoff, Ford Harrison LLP, Atlanta BREAk 17-10-12, 19-8-13, 19-12-1, 36-82-79, 40-9-40, 40-9-60, 45-17-4, 10:30 BREAk 2:15 2:30 DISCLOSURES, COnFLICTS AnD CHALLEnGES 46-3-222. In ARBITRATIOn Hon. Stanley F. Birch, Jr., JAMS, Atlanta4. See my previous Dispute Resolution article entitled To a Man Richard M. Asbill, Asbill Dispute Resolution, Atlanta William F. Welch, Merritt Watson LLP, Atlanta Who Has a Hammer, Everything Looks Like a Nail: The Role(s) 3:30 ADJOURn of the “Appraiser” in Dispute Resolution and Alternative Dispute CAnCELLATIOn POLICY SEMInAR REGISTRATIOn POLICY Cancellations reaching ICLE by 5:00 p.m. the day before the seminar Early registrations must be received 48 hours before the seminar. ICLE will accept on- Resolution as Finder of Fact, Neutral, or Judicial Adjunct, DR date will receive a registration fee refund less a $15.00 administra- tive fee. Otherwise, the registrant will be considered a “no show” and site registrations as space allows. However, potential attendees should call ICLE the day before the seminar to verify that space is available. All attendees must check in upon Currents (Spring 2012). See also Georgia Real Estate Appraisers ICLE will not receive a registration fee refund. Program materials will be shipped after the program to every “no show.” Designated substitutes arrival and are requested to wear name tags at all times during the seminar. ICLE makes every effort to have enough program materials at the seminar for all attendees. When Board Notice of Intent to adopt GA. COMP. R. & REGS. 539-1-.24 may take the place of registrants unable to attend. demand is high, program materials must be shipped to some attendees. dated June 21, 2012.Summer 2012 5
  6. 6. Mediating Criminal Cases in GeorgiaBy Michael L. Wetzel “Criminal justice today is for the most part a Court, states: “Any contested civil case, criminal case, or system of pleas, not a system of trials,” observed juvenile case may be referred to mediation by the judge to Justice Anthony Kennedy recently, noting that 97 whom the case is assigned. * * *.” (Emphasis added). percent of federal cases and 94 percent of state Examples of a wide variety of criminal cases that are resolved via plea agreements.1 Consequently, have been mediated, ranging from felony theft by taking;7 “[m]ediation and other forms of dispute aggravated assault and weapons charges;8 bad checks;9 resolution are becoming more commonplace in sexual abuse of a minor;10 sexual misconduct; .11 child the criminal sector.”2 abuse;12 to murder.13T he reasons for mediating criminal cases are similar to The mechanism for getting criminal cases to mediation those for mediating civil cases, 97 percent of which is provided by URDRP Rule 2.5, which states: “Any party are resolved prior to to a dispute may petitiontrial.3 Criminal courts are the court to refer the caseill suited to the resolution to mediation, non-bindingof non-violent disputes arbitration, case evaluationbetween people in some or early neutral evaluation,form of relationship (e.g., summary jury trial, mini-neighbors, co-employees, trial or some combinationchurch members, family).4 thereof.” Courts haveAlternative dispute resolution authority to order parties(ADR) programs are to attempt mediation,14efficient and cost-effective but cannot order parties tomeans of disposing of settle their disputes.15 Theconflicts.5 Mediation is a objective is to facilitatevoluntary process in which a civil settlement for andecision-making power interpersonal dispute by wayremains in the hands of of the mediation process.the parties, facilitated by a The criminal charge remainsneutral third-party with no pending, to await the outcomedecision-making authority, of the settlement efforts. Ifwho assists the parties they are successful, the courtin voluntarily reaching a entertains dismissal of thesettlement.6 A mediated criminal charges. If not, thesettlement eliminates the latter would proceed.16unpredictability of a verdictafter a trial. At mediation the The participants in theparties can discuss concerns mediation are the parties - theand interests and fashion “victim” and the “offender”an agreement that fits the dispute. At a trial only legally (including representatives or a victim advocate) – andrelevant evidence is admissible; only legal remedies (e.g., a mediator. The State, through its prosecuting attorney,fines, incarceration, probation) are available. A new law is not a participant.17 The URDRP do not limit when(H.B. 1176, effective July 1) expresses a change of public pending cases can be referred to mediation. Criminalpolicy, seeking to lower Georgia’s incarceration rate and cases have been referred to mediation as an alternativecosts by channeling nonviolent offenders away from prison to or diversion from prosecution,18 post-adjudication butand toward treatment and rehabilitation programs. prior to sentencing or post-sentencing.19 Confidentiality protects the constitutional rights of the participants in the There is no limitation under Georgia law. Rule mediation. Rule VII. A of the Supreme Court of Georgia2.1, Uniform Rules for Dispute Resolution Programs Alternative Dispute Resolution Rules, effective Oct. 22,(“URDRP”), Appendix A to the Alternative Dispute 1992, generally makes confidential all statements madeResolution Rules promulgated by the Georgia Supreme and documents or other evidence generated during or 6 DR Currents
  7. 7. in connection with a court-connected or court-referred and appellate experience (over 100 reported decisions).mediation.20 There are exceptions to the confidentiality for (Endnotes) 1 Lafler v. Cooper, case no. 10-209, 566 U.S. (Mar. 21, 2012), slip op., p. 7.perceived threats or imminent violence, or suspected child 2 Whyte, Jean, “How Do You Mediate a Criminal Case?”, Criminalabuse or the safety of any party or third person is in danger. Justice Newsletter, Vol. 15, No. 1, Fall 2006, pp. 12-13, publishedRule VII. B. by the ABA Section of Criminal Justice. See also Byrd v. State, 186 Ga. App. 446, 447, 367 S.E.2d 300 (1988), citing Rice, “Mediation Mediated settlement agreements in criminal cases are & Arbitration as a Civil Alternative to the Criminal Justice Systemgenerally enforceable. URDRP Rule 8 provides: “Written – An Overview and Legal Analysis,” 29 American Univ. Lawand executed agreements or memoranda of agreement Review 17, 21 (1979)reached as a result of a court-connected ADR process are 3 Bur. of Justice Statistics Bulletin Civil Trials in Large Counties, 2001, NCJ202803.enforceable to the same extent as any other agreements. 4 Wright v. Brockett, 150 Misc.2d 1031, 1033, 571 N.Y.S.2d 660, 662Oral agreements shall not be enforceable.” (Bronx Co. 1991) (Referring to “the more than 1000,000 actions which have been diverted from the criminal process into alternative Court referral of criminal cases to mediation also dispute resolution over the past 10 years”).protects the parties against prosecution for compounding 5 Id., 150 Misc.2d at 1035, 571 N.Y.S.2d at 663.a crime. O.C.G.A. § 16-10-90(a) (“A person commits the 6 Department of Transportation v. City of Atlanta, 259 Ga. 305,offense of compounding a crime when, after institution 307(3)(b), 380 S.E.2d 265 (1989). 7 Byrd v. State, 186 Ga. App. 446, 447-449(2), 367 S.E.2d 300 (1988).of criminal proceedings and without leave of the court 8 State v. Williams, 183 N.J. 256, 872 A.2d 799 (2005). State v.or of the prosecuting attorney of the court where the Schnyder, 83 Oh.3d 203, 699 N.E.2d 83(1998)criminal proceedings are pending, he accepts or agrees 9 Passa v. City of Columbus, 748 F. Supp. 804 (S.D. Ohio 2010)to accept any benefit in consideration of a promise, express 10 “Criminal Mediation: The Way of the Future?” (March 21, 2012),or implied, not to prosecute or aid in the prosecution of a 11 Eisenberg v. District Atty. of Kings Co., 847 F. Supp. 1029, 1031criminal offense”). (Emphasis added.) (E.D. N.Y. 1994)Contact Michael Wetzel to obtain a copy of a Motion to Refer to 12 Strain v. Kaufman Co. District Atty.’s Office, 23 F. Supp.2d 685, 689Mediation and brief in support. (N.D. Tex. 1998) 13 People v. Snyder, 129 Misc.2d 137, 429 N.Y.S.2d 890 (Erie Co. 1985). Michael L. Wetzel was admitted to the State Bar 14 Dikeman v. Mary A. Stearns, P.C., 253 Ga. App. 646, 649(3) fn. 9, 560 S.E.2d 115 (2002) in 1978. He is the sole proprietor of the law firm 15 Department of Transportation v. City of Atlanta, 259 Ga. 305, 307, of Michael L. Wetzel, PC. Wetzel Mediation 380 S.E.2d 265 (1989) & Arbitration was formed in recognition of the 16 Byrd v. State, 186 Ga. App. at 447-448. growing need for an alternative to litigation. He 17 Ibid.; Wright v. Brockett, supra is registered as a mediator and arbitrator through 18 Byrd v. State, supra the Supreme Court of Georgia Office of Dispute 19 “Victim-Offender Mediation: A National Perspective,” https://www. Resolution (#2291), serves as an arbitrator (Visited 6/20/2012)for the U.S. District Court for the Middle District of Georgia, 20 See also Byrd v State, 186 Ga. App. at 448-449, which reversed thehas participated in both private and court connected ADR defendant’s conviction for felony theft by taking because trial court erred in allowing evidence from the court-ordered mediation in theproceedings. He aslso has extensive trial experience (over 300) subsequent trial. Consumer Pamphlet Series The State Bar of Georgia’s The following pamphlets are available: Consumer Pamphlet Series Advance Directive for Health Care n Auto Accidents is available at cost to Bar n Bankruptcy n Buying a Home n Divorce n How to Be a Good Witness n How to Choose a Lawyer members, non-Bar members n Juror’s Manual n Lawyers and Legal Fees n Legal and organizations. Pamphlets Careers n Legal Rights of Nursing Home Residents are priced cost plus tax and n Patents, Trademarks and Copyrights n Selecting a shipping. Questions? Call 404- Nursing Home n Selecting a Personal Care Home n 527-8792. Wills Visit for an order form and more information or email 2012 7
  8. 8. Gender Bias in MediationBy Jay Frank Castle and Dedra Newman Castle “We still think of a powerful man as a born ~~ In surveys, 2.5 times more women than men said leader and a powerful woman as an anomaly.” - they feel “a great deal of apprehension” about Margaret Atwood negotiating.I n our last article, we discussed how our minds ~~ Surveys reveal that men most often associate automatically activate stereotypes and how this may negotiating with “winning a ballgame” and a lead to racial bias in mediation.1 We now turn our “wrestling match”, while women associate it withattention to gender bias. “going to the dentist”. Most practitioners agree that mediation works best ~~ 20 percent of women said they never negotiate –when the participants begin from comparable positions ever.of power, including economic, intellectual, physical, ~~ The majority of women surveyed reported feelingemotional, and procedural power.2 Just as we saw with guilty about asking for more money than wasracial bias, the parties’ gender biases can influence initially offered.their relative levels of power and their attitudes towardnegotiation. Counsel’s gender biases can impact their ~~ Women perform 18 percent better in negotiationseffectiveness. The mediators’ gender bias can affect their when they act as an agent for others than when theyimpartiality and neutrality.3 negotiate on behalf of themselves, while there is no difference in outcomes for men. Contrary to popular belief, the potential for gender biasexists in both male and female mediators.4 Gender bias is The Scenarios7present in all cultures and sociological contexts.5 There is Our first scenario involves a pre-suit casualty matter.a substantial body of research in this area and we cannot The defendant was represented at mediation by a femalepossibly summarize it in this article. However, we have insurance adjuster. The plaintiffs’ counsel was a 40ishselected a few highlights to illuminate our discussion6: male. Plaintiffs’ counsel was solicitous of the adjuster ~~ In a study of automobile dealership negotiations, while largely ignoring his older, plain-appearing female black women were asked to pay over three times client. In a private session, he expressed to us that he found the dealer markup as white males, while white the adjuster to be “very attractive”. women were asked to pay almost twice as much The female adjuster entered the mediation with markup as white males. clearly articulated positions. She understood the strengths and weaknesses of her case as well as those of her opponent. Plaintiff’s counsel entered the mediation with six figure demands on behalf of his client along with threats of immediate litigation. However, he appeared to be less prepared than the adjuster. The female adjuster ultimately negotiated a five figure settlement payment in a relatively short session. She successfully accomplished all of her goals for the mediation. During a break (and armed with her recently- gained knowledge of Dedra’s background in human resources), the female adjuster requested Dedra’s feedback on the outcome of a recent performance review she received from her employer. She shared with us that she had declined to apply for a promotion even though she was clearly qualified for the higher position. She was also dissatisfied with her earnings – especially in comparison with her male colleagues – but she 8 DR Currents
  9. 9. was unwilling to raise the issue on her own. She told us participants implicitly agreed with this approach in valuing“[i]f I have to ask for more money, then it is clear that they the case.don’t value me.” It was striking to us that this adjuster, What Can We Do?who moments earlier had been fighting tooth and nail forher employer’s interests, did not employ the same levels of We have found that focused self-examination can helpassertiveness for her own career interests. us better understand our own personal definitions of women and men. Once we can articulate personal definitions, we Our second scenario arises from mediation in a should then determine whether these definitions impactlawsuit filed by a married couple in their 70s after their our impartiality. We also seek to understand our culturalcollision with an inexperienced driver. The insured and/or family backgrounds as they relate to the roles ofdefendant’s liability was clear. During the joint session men and women. Even if we don’t consciously embraceand also in the private sessions, the husband took the lead the views to which we have been exposed since birth, wein communicating their respective injuries, interests and question whether our subconscious minds are automaticallydemands. The wife was largely silent and allowed her activating any gender stereotypes. We use mindfulnesshusband to answer questions about her current condition techniques to keep these considerations at the forefront asand other matters. we conduct our mediation sessions.8 Upon their receipt of the insurance carrier’s first On a more tactical level, we actively encourage femaleoffer, the wife announced that she wanted to accept it parties to take their physical seat at the table when weand “move on with our lives”. The husband disagreed conduct a mediation. In our experience women oftenand persuaded the wife to continue with the mediation concede the central locations to their male counterpartsprocess. As the mediation continued, the husband, and do not participate in the discussions as fully as men.their counsel and the insurance adjuster negotiated the Similarly, we encourage participants to follow mediationhusband’s claims but spent relatively little time discussing conduct rules that foster open communication. Whenthe wife’s claims. interrupted, men tend to simply talk louder while women The parties eventually reached a joint settlement often shut down. We engage in active listening with allfor both claimants without allocation amongst them. participants. It takes time and patience to allow everyone toHowever, the amount of the settlement correlated closely speak in their own authentic voices, but this is crucial if theto the amount of the husband’s medical bills, lost wages, fundamental right of self-determination is to be effectivelyand property damage. The wife’s medical bills and other exercised by the parties.damages were not reflected in the settlement. After we have had a chance to develop rapport with theWhat Happened and Why is it Important? parties, we use private sessions to ask questions like: “how do you feel about the mediation?”; and “do you feel that These scenarios illustrate several gender-specific your interests are being communicated?” If they indicatedifferences in the identification and pursuit of negotiating that they are somehow uncomfortable with the proceedings,opportunities. In the first scenario, we see the impact of we probe further and try to determine whether gender biassexist behaviors and the role of sexual attraction. The (or other biases) may be playing a role.male attorney overlooked negotiating opportunities in anapparent effort to curry favor with the female adjuster. ConclusionHe assumed that the attraction was mutual when, in fact, We believe mediators should assume that women inthe female adjuster used his bias against him during the mediation proceedings have a materially different “seat atnegotiations. We also see the dynamic of personal vs. the table” than men and that mediators should be vigilantrepresentative negotiation as personified by the female to assure a neutral process. We hope this article has raisedadjuster. She was much more effective when she was awareness of the often-subtle role that gender bias can playnegotiating on behalf of her employer than when she was in mediation, and that it will start a dialogue about hownegotiating for her own interests. mediators can address such bias while still maintaining In the second scenario, we see gender-specific their impartiality.differences in the parties’ values and attitudes towards © 2012 Jay Frank Castle and Dedra Newman Castlenegotiation and the economic interests of men and women. Jay Frank Castle is a mediator, facilitatorThe elderly wife did not want to participate in extendednegotiations. She was mostly silent and sat some distance and corporate director with a broadbehind her husband during the mediation. She literally background in business and law. Jaydid not take a seat at the negotiating table. The husband is a co-founder and member/managerunilaterally placed a lower economic value on his wife’s of Level Mediation LLC (www.interests than on those of his own. The other mediation He also servesSummer 2012 9
  10. 10. on the boards of directors of two privately-held Conflict Analysis & Resolution program and expectscompanies – a soft drink distributor in Northwest to earn her PhD in 2013. She can be contacted atLouisiana and a professional services firm in New York. Castle is the former vice (Endnotes)president, assistant corporate secretary & general 1 See Castle &Dogan, “The Role of Bias in Mediation”, DR Currentscounsel, and chief litigation counsel for a Fortune 200 (Fall 2011) (“Castle &Dogan”).company. Among other things, he was responsible for 2 Goodmark, “Alternative Dispute Resolution and the Potential for Gender Bias”, The Judge’s Journal21 (Spring 2000) (“Goodmark”)managing that company’s Chapter 11 reorganization, citing Hughes, “Elizabeth’s Story: Exploring Power Imbalances inwhich included resolving approximately 20,000 Divorce Mediation”, 8 Geo. J. Legal Ethics 553, 574 (1995).scheduled and filed claims presented in that case. 3 Goodmark at 25, 27. 4 Goodmark at 25.Prior to that, he was a partner and associate at several 5 See, e.g.,Ordonez, “Global Voices Detail a History of Gender Biasprominent Atlanta law firms. He received his Doctor in Journalism”, Online Journalism Review ( Law (with Distinction) from Emory University people/ordonez/201006/1863/) (June 29, 2010); Weichselbaumer& Winter-Ebmer, “A Meta-Analysis of the International GenderSchool of Law and his Bachelor of Arts (with High Wage Gap”, 19 Journal of Economic Surveys 479 (2005);Honors) from the University of Florida. Castle can be Beoku-Betts, “African Women Pursuing Graduate Studies in thecontacted at Sciences: Racism, Gender Bias and Third World Marginality”, 16 National Women’s Studies Association Journal 116 (2004); Osborne, “Art is Just An Excuse: Gender Bias in International Dedra Newman Castle is a co-founder Orchestras”, International Association of Women Musicians Journal and member/manager of Level 6 (October 1996); Donner, “Gender Bias in Drafting International Discrimination Conventions: The 1979 Women’s Convention Mediation LLC (www.levelmediation. Compared with the 1965 Racial Convention”, 24 California Western com).She is one of the firm’s chief International Law Journal 241 (1994). mediators and has an eighteen-year 6 See, e.g.,Rezvani, Pushback: How Smart Women Ask--and Stand Up--for What They Want (Jossey Bass 2012); Babcock career as a human resources practitioner &Laschever, Women Don’t Ask (Princeton University Press 2012); and executive. She has held the senior Fairbanks, “They Don’t Negotiate: Why Young Women CollegeHR generalist role within 3 Fortune 500 Companies Graduates Are Still Paid Less Than Men”, The Huffington Post ( the past 14 years. Most recently, she led the women-college-graduates-first-job_n_875650.html (June 13,corporate human resources function and was the Chief 2011); Pradel, Bowles &McGinn, “When Gender Changes theInclusion and Diversity Officer for the Sam’s Club Negotiation”, Women in Business (www.women-in-business. net/wib/?page=articles&aid=44) (February 13, 2006); Ayres,Division of Walmart Stores, Inc. Castle is an honors “Fair Driving: Gender and Race Discrimination in Retail Cargraduate of National University (San Diego) and Negotiations”, 104 Harvard Law Review 817, 818 n.4 (1991).Loyola University of the South (New Orleans) Schools 7 These fictional scenarios are based upon actual events that we have encountered in our work.of Business. She is currently enrolled in the Nova 8 Castle &Dogan at 6.Southeastern University (Fort Lauderdale) Advanced The State Bar has three offices to serve you. HEADQUARTERS SOUTH GEORGIA COASTAL GEORGIA OFFICE 104 Marietta St. NW OFFICE 18 E. Bay St. Suite 100 244 E. 2nd St. Savannah, GA 31401-1225 Atlanta, GA 30303 Tifton, GA 31794 912-239-9910 404-527-8700 229-387-0446 877-239-9910, 800-334-6865 800-330-0446 Fax 912-239-9970 Fax 404-527-8717 Fax 229-382-7435 10 DR Currents
  11. 11. Manage Conflict; Don’t Just Wait toResolve DisputesBy Barrett HawksC onsiderable attention is paid in ADR circles and to resolve them. among lawyers to resolving disputes alternatively One way to avoid not only the expenses of litigation as while much less attention is given to managing well as mediation and arbitration is to:conflict or, stated another way, getting to the “problem”and developing a solution before the parties are locked in Settle Proactively and Early; Even Admit Faulta dispute. and Apologize Where Appropriate. This is the first of three articles on the subject of A few years ago Baptist Children’s Hospital in Miamiproactively managing conflict. The main thrust of these and the Veterans Affairs Medical Center in Lexington,articles is to convey the concept that lawyers and dispute Kentucky, adopted a policy of admitting medical errors,resolution professionals don’t exist solely to resolve apologizing for them and initiating a claim—even whendisputes. One of the most valuable services they can the patient or the patient’s family had no idea medical errorprovide to clients is to help them avoid open conflict contributed to the bad outcome. Resulting legal costs of the Veterans Center in Lexington were among the lowest in the This first article advocates proactive early settlement, “ VA system and Baptist Children’s Hospital substantiallyeven with admissions of lowered its medical claims costsfault and apology where and its insurance premiums.appropriate.  A second articlewill describe contractualprocesses that help to preventand de-escalate disputes,going beyond the standardarbitration and mediationclauses.  The third article Settle Proactively and Early; Even Admit Fault and Apologize Where ” Review and analysis of Baptist Children’s Hospital by The Wall Street Journal, August 25, 2009, and of the Lexington VA Center by Forbes Magazine, Sept. 19, 2005, shows not only the good results achieved bywill discuss some techniquesfor recognizing and defusing Appropriate. the institutions themselves, but also the keen interest of businessincipient conflict which are readers in learning ways tobeing explored and successfully reduce their litigation costs.practiced by a growing number of businesses and otherinstitutions. The initiatives of Baptist Children’s Hospital of Miami and the VA Center in Lexington have spread. Regulatory Mediation and arbitration have evolved into highly and accreditation agencies are now in some instancesdeveloped processes. In fact, arbitration is itself producing requiring health care providers to discuss the outcomesa significant amount of litigation. Tom Stipanowich has of their medical care and treatment with their patients,characterized arbitration as the “new litigation.” Arbitration: including unanticipated outcomes. See legislative findingsThe New Litigation, U. Ill. L. Rev.1, 2010. The concerns of the Georgia General Assembly set out in preamble to O.discussed in that article lead to the creation of the Protocols C. G. A. 24-3-37.1 (2010).for Expeditious, Cost-Effective Commercial Arbitration bythe College of Commercial Arbitrators. The protocol, while Covenant Transport and Toro Lawnmowers each havesalutary, is another comprehensive and lengthy contribution widely reported proactive policies for settling personalto an already complex process. Mediation is also becoming injury claims. In appropriate cases, Covenant’s CEO evenheavily encrusted with state law and regulatory “protections” attends the funeral of accident victims and apologizestoo numerous to cite here. While mediation and arbitration to the family. Toro has non-lawyer engineers contact thewill nevertheless continue to play a valuable role in resolving injured party, investigate the cause of the accident anddisputes, there seems to be a significant need for lawyers settle before the situation hardens into an adversarialas well as ADR professionals to do more to assist clients in battle. These approaches often result in quick and lessmanaging conflict before disputes ripen to the point that they expensive settlements. When they do not, these companiesbecome adversarial and require courts or third party neutrals are able to concentrate their legal defense on the limitedSummer 2012 11
  12. 12. its regular business clients about these approaches or would it prefer that specialties develop to service this need? These and other new dispute resolution techniques are developed every day. As a profession, we should stay on top of them. There is a bigger role for lawyers in this arena than most of us recognize. Dispute resolution professionals can help broaden the development of upstream solutions if we give them more attention—in advice to clients, in our CLE programs, and otherwise. Most lawyers could use training in techniques to get outside of their normal comfort zone for approaching a settlement discussion—learning an attitude of fixing the problem rather than fixing the blame. Itinstances where the proactive approach does not succeed. may be that much activity ofAs an example, Toro reduced over a few years its claims this kind occurs “below the radar,” but there would seem tosettlement costs to an average of $35,000 from an average be room for improvement.of $115,000. Notable also is the fact that its settlement What is written here is not intended to suggestphilosophy did not result in a rise in claims, showing that Pollyanna approaches that will work in all cases. There willthere is no need to fear that a business with this philosophy always be hard fought litigation, sometimes warranted bywill become known as a soft target. the issues, important principles or policies, a potentially Those who think these approaches create undue risk devastating outcome on a party or an intransigentof damaging admissions of interest should consider that defendant. But, we can and should recognize that mostthe results of the businesses and institutions cited suggest disputes can be settled by the parties with much less costotherwise. In addition, many states have recently passed than is normally incurred and with the satisfaction that alaws making an apology or a statement of sympathy or voluntary settlement provides to the parties. Because webenevolence inadmissible against the defendant, in at know that 98 percent of court cases are settled before trial,least some circumstances. Georgia has such a law limited does it not make sense to avoid the filing of suit wheneverto “health care providers” O. C. G. A. section 24-3-37.1 possible? And might our views of “whenever possible”and a successor section 24-4-416, with an effective date change if we learn new approaches and skills?of Jan. 1, 2013. The limitation of the Georgia statute to Barrett serves as a full-time, independenthealth care providers seems unfortunate, particularly in neutral. Before his retirement in 2009, he waslight of the General Assembly’s findings: “The General a partner in Sutherland Asbill & BrennanAssembly finds that conduct, statements, or activity LLP where for many years he focusedconstituting voluntary offers of assistance or expressions on representing businesses in transactionalof benevolence, regret, mistake, error, sympathy or matters and litigation avoidance as well asapology between or among parties or potential parties on serving as a mediator and arbitrator into a civil action should be encouraged and should not be a variety of business disputes. He also hasconsidered an admission of liability.” significant court room experience, including jury trials. Barrett is designated as a Distinguished Neutral in both energy and Lawyers for some of the companies that use this commercial matters by the CPR International Institute forapproach have reinvented themselves as counsel to other Conflict Prevention and Resolution, is certified as a mediator bycompanies desiring to consider similar policies. So, one the American Arbitration Association and is registered with themight ask: Would the profession in general prefer to advise Georgia Office of Dispute Resolution. 12 DR Currents