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

1. DR Currents
A Publication of the Dispute Resolution Section of the State Bar of Georgia Summer 2012
From the Chair
by Hal Gray
I
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 at
Bar Center. As in the past, this Institute is co-sponsored by the same time providing “old war horse” arbitrators
the 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 and
have done an excellent job of finding “new” speakers
John for all of their hard work and dedicated service to the
for the program - included are out-of-state and first-time
Section.
speakers Professor Tom Stipanowich of the Strauss Institute
at 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 both
retired 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 has
issues and class-action waivers. We’ll receive a report
been a member of the AAA Mediation and its various Arbitration
regarding the first Atlanta International Arbitration Society Panels for twenty-five years and regularly works as a mediator
Conference that was held in January as well as the future and arbitrator in construction and commercial disputes. Hal
of international arbitration in Atlanta. Additionally, currently serves as the Chair of the State Bar Dispute Resolution
ethics/disclosure considerations will be addressed, as will Section and the Boards of Directors of the Construction Law
arbitration clause drafting, best and worst practices in and Dispute Resolution Sections of the Atlanta Bar. He is a
arbitration and advocates’ and arbitrators’ views of each Fellow of the College of Commercial Arbitrators and a member
other - 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 an
Arbitrator?” 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. Neutrals: Pioneers of a New Frontier
By Bob Berlin & Carolyn L. Raines
W
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 has
with its ebb and flow, the vastness of space where planets indicated that our judicial system is nearing a crisis. “… in
and stars light the way, we have an innate curiosity to ask, recent years, the erosion of budgets in the face of growing
what’s there and beyond? Is there a curiosity for “what’s caseloads has put us perilously close to being unable to
next” 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 it
We are quick to say Alternative Dispute Resolution. The moving like a well-oiled machine. Two of the processes
original word was discontinued in favor of Alternative that can be employed are, most likely, somewhat familiar
to invite the legal/court system to entertain, use and, to you; i.e. Arbitration and Mediation. Less familiar are
hopefully, 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-Med
parlance. 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 potential
or 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 few
propositions, 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) hears
services, should we respond with alternative processes
each party’s case and makes a decision as to ‘who had the
that are more appropriate for the conflict and/or conflicted
red light.’ Once that determination is made, the parties are
parties? Let’s take the sage advice of Professor Frank E.
then able to make a more definitive decision as to a next
A. 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. 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, and
division of personal property. An arbitrator can be called Arbitration services as well as Lead Trainer. He has experience
upon 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 of
make 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 Committee
Bullet Mediation; Conciliation; Neutral Evaluation; and, of the Training & Credentialing Committee of the Georgia
the 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 registered
courts for enforcement without running the risk of appeal
Mediator with the Georgia Office of Dispute Resolution, and has
and 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 in
career 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 Juvenile
fully trained and qualified Neutrals (Arbitrators, Mediators Court.
and Case Evaluators, etc.) want and, in fact, are eager
to contribute. They left mediation or arbitration training (Endnotes)
1. 2012 STATE OF THE JUDICIARY ADDRESS THE HONORABLE
thinking, “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 Capitol
purpose by becoming a true pioneer in our progress toward
helping 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-Large
Summer 2012 3

4. Is There Superior Court Jurisdiction
in Property Tax Appeals to Binding
Arbritration Under O.G.C.A. Section
48-5-311(F)?
By Jon M. Ripans
U
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 that
county Board of Tax Assessors. This appeal route clearly court has jurisdiction, but only an administrative
vests the Superior Court with jurisdiction over the appeal. jurisdiction to appoint the third arbitrator. *554
The three other methods remain at the administrative level. The person holding the office of judge is the one
They are appeal to: 1) Board of Equalization, 2) County designated to do the appointing, not the court
Hearing 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 confusion
over 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 to
award, and, most recently, Sheriff’s service of process binding arbitration, the board of tax assessors shall have ten
fees. There are a number of reasons to believe that appeals days to provide the taxpayer with 1) an acknowledgement
of property tax assessments to binding arbitration do not of the demand for binding arbitration and 2) notice that
confer 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 and
property tax assessment notices appealed to binding
notice that within 45 days the taxpayer shall pay to the
arbitration, 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 include
Heard, 118 Ga. App. 550 (1968), the Georgia Court of the phrase “if any” in O.C.G.A. Section 48-5-311(f)? If it
Appeals considered the appointment of a third arbitrator were meant to be the typical superior court filing fees, the
under Code Section 92-6912, “relating to the arbitration of Legislature would have simply referenced the code section
disputes between the taxpayer and boards of tax assessors.” that contains the filing fee, as it has in so many other code
That statute provided that once the taxpayer and the board of sections.3 Instead, it referred to O.C.G.A. Section 15-6-77
tax assessors named their respective arbitrators, then the third with the conditional phrase “if any,” and that code section
arbitrator “shall be named by the judge of the superior court makes no specific provision for filing fees for binding
of the county wherein the property lies” if neutrals selected arbitration of property tax appeals. The assignment of
by the parties cannot agree on a third arbitrator. The Court of a civil action file number can simply be viewed as an
Appeals ruled that the appointment of the third arbitrator by administrative mandate to make sure the whole file does not
the judge of the Superior Court does not empower the judge get lost in a haystack.
to 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 of
arbitrator itself does not confer any jurisdiction upon the Superior Court. Instead, the statute speaks of the board
Superior 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. and the taxpayer’s attorney of record, if any, or employee InstItute of ContInuIng LegaL eduCatIon In georgIa
with a copy of the certification along with any other papers Friday • august 10, 2012
specified by the person seeking arbitration along with the
6th ANNUAL
civil action file number assigned to the appeal.”
The fourth reason is that conferring jurisdiction ARBITRATION
upon the Superior Court raises a host of inconveniences
for taxpayers, tax assessors, county attorneys, taxpayer
INSTITUTE
6 CLE Hours including
attorneys, judges, staff attorneys, sheriffs, and others in 1 Ethics Hour • 1 Professionalism Hour • 3 Trial Practice Hours
connection 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 w.gAbAr.org
state bar of georgia
of 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: 800-843-6664
upon 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.org
the 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 refunds
tax arbitrator to be vested in someone who would be Online: iclega.org (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: 1–800–422–0893
perceived as sufficiently neutral, would not be so detached arBitratiON iNstitutE • August 10, 2012 • 8017
as 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 notification
seen 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: $165
Estate 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: $185
for 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.net
and at http://www.linkedin.com/in/jonripans.
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, Atlanta
a property tax advocate under various fee arrangements. He has School of Law, Malibu, CA Linda A. Klein, Baker, Donelson, Bearman, Caldwell &
Berkowitz, P.C., Atlanta
given 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
Atlanta
Professionals 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,
Atlanta
1. 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, Atlanta
2. 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,
Atlanta
3. 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, Atlanta
4. 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. Mediating Criminal Cases in Georgia
By 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.13
T
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 petition
trial.3 Criminal courts are
the court to refer the case
ill suited to the resolution
to mediation, non-binding
of non-violent disputes
arbitration, case evaluation
between people in some
or early neutral evaluation,
form of relationship (e.g.,
summary jury trial, mini-
neighbors, co-employees,
trial or some combination
church members, family).4
thereof.” Courts have
Alternative dispute resolution
authority to order parties
(ADR) programs are
to attempt mediation,14
efficient and cost-effective
but cannot order parties to
means of disposing of
settle their disputes.15 The
conflicts.5 Mediation is a
objective is to facilitate
voluntary process in which
a civil settlement for an
decision-making power
interpersonal dispute by way
remains in the hands of
of the mediation process.
the parties, facilitated by a
The criminal charge remains
neutral third-party with no
pending, to await the outcome
decision-making authority,
of the settlement efforts. If
who assists the parties
they are successful, the court
in voluntarily reaching a
entertains dismissal of the
settlement.6 A mediated
criminal charges. If not, the
settlement eliminates the
latter would proceed.16
unpredictability of a verdict
after a trial. At mediation the The participants in the
parties can discuss concerns mediation are the parties - the
and interests and fashion “victim” and the “offender”
an agreement that fits the dispute. At a trial only legally (including representatives or a victim advocate) – and
relevant 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. Criminal
policy, seeking to lower Georgia’s incarceration rate and cases have been referred to mediation as an alternative
costs by channeling nonviolent offenders away from prison to or diversion from prosecution,18 post-adjudication but
and 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 Georgia
2.1, 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 made
Resolution Rules promulgated by the Georgia Supreme
and documents or other evidence generated during or
6 DR Currents

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?”, Criminal
abuse or the safety of any party or third person is in danger. Justice Newsletter, Vol. 15, No. 1, Fall 2006, pp. 12-13, published
Rule 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 System
generally enforceable. URDRP Rule 8 provides: “Written – An Overview and Legal Analysis,” 29 American Univ. Law
and 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, 662
Oral 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 http://georgiaadr.wordpress.com/2012/03/21/crimin...
11 Eisenberg v. District Atty. of Kings Co., 847 F. Supp. 1029, 1031
criminal 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, 689
Mediation 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 ncjrs.gov/ovc_archives/reports/96517-... (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 the
has 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 the
proceedings. 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
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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 www.gabar.org for an order form and more information or
email stephaniew@gabar.org.
Summer 2012 7

8. Gender Bias in Mediation
By 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 with
attention 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 feeling
emotional, and procedural power.2 Just as we saw with
guilty about asking for more money than was
racial bias, the parties’ gender biases can influence
initially offered.
their relative levels of power and their attitudes toward
negotiation. Counsel’s gender biases can impact their ~~ Women perform 18 percent better in negotiations
effectiveness. The mediators’ gender bias can affect their when they act as an agent for others than when they
impartiality 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 bias
exists in both male and female mediators.4 Gender bias is The Scenarios7
present 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 female
possibly summarize it in this article. However, we have
insurance adjuster. The plaintiffs’ counsel was a 40ish
selected 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. 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 for
her employer’s interests, did not employ the same levels of We have found that focused self-examination can help
assertiveness 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 impact
lawsuit filed by a married couple in their 70s after their
our impartiality. We also seek to understand our cultural
collision with an inexperienced driver. The insured
and/or family backgrounds as they relate to the roles of
defendant’s liability was clear. During the joint session
men and women. Even if we don’t consciously embrace
and also in the private sessions, the husband took the lead
the views to which we have been exposed since birth, we
in communicating their respective injuries, interests and
question whether our subconscious minds are automatically
demands. The wife was largely silent and allowed her
activating any gender stereotypes. We use mindfulness
husband to answer questions about her current condition
techniques to keep these considerations at the forefront as
and 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 female
offer, the wife announced that she wanted to accept it
parties to take their physical seat at the table when we
and “move on with our lives”. The husband disagreed
conduct a mediation. In our experience women often
and persuaded the wife to continue with the mediation
concede the central locations to their male counterparts
process. 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 mediation
husband’s claims but spent relatively little time discussing
conduct rules that foster open communication. When
the 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 all
for both claimants without allocation amongst them. participants. It takes time and patience to allow everyone to
However, the amount of the settlement correlated closely speak in their own authentic voices, but this is crucial if the
to the amount of the husband’s medical bills, lost wages, fundamental right of self-determination is to be effectively
and 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 the
What 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 indicate
differences 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 bias
sexist behaviors and the role of sexual attraction. The
(or other biases) may be playing a role.
male attorney overlooked negotiating opportunities in an
apparent effort to curry favor with the female adjuster. Conclusion
He assumed that the attraction was mutual when, in fact,
We believe mediators should assume that women in
the female adjuster used his bias against him during the
mediation proceedings have a materially different “seat at
negotiations. We also see the dynamic of personal vs.
the table” than men and that mediators should be vigilant
representative negotiation as personified by the female
to assure a neutral process. We hope this article has raised
adjuster. She was much more effective when she was
awareness of the often-subtle role that gender bias can play
negotiating on behalf of her employer than when she was
in mediation, and that it will start a dialogue about how
negotiating 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 Castle
negotiation and the economic interests of men and women.
Jay Frank Castle is a mediator, facilitator
The elderly wife did not want to participate in extended
negotiations. She was mostly silent and sat some distance and corporate director with a broad
behind her husband during the mediation. She literally background in business and law. Jay
did not take a seat at the negotiating table. The husband is a co-founder and member/manager
unilaterally placed a lower economic value on his wife’s of Level Mediation LLC (www.
interests than on those of his own. The other mediation levelmediation.com). He also serves
Summer 2012 9

10. on the boards of directors of two privately-held Conflict Analysis & Resolution program and expects
companies – a soft drink distributor in Northwest to earn her PhD in 2013. She can be contacted at
Louisiana and a professional services firm in dedra@levelmediation.com.
metropolitan New York. Castle is the former vice
(Endnotes)
president, assistant corporate secretary & general 1 See Castle &Dogan, “The Role of Bias in Mediation”, DR Currents
counsel, 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 in
which 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 Bias
prominent Atlanta law firms. He received his Doctor in Journalism”, Online Journalism Review (http://www.ojr.org/ojr/
of Law (with Distinction) from Emory University people/ordonez/201006/1863/) (June 29, 2010); Weichselbaumer&
Winter-Ebmer, “A Meta-Analysis of the International Gender
School 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 the
contacted at jay@levelmediation.com. 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 College
HR generalist role within 3 Fortune 500 Companies Graduates Are Still Paid Less Than Men”, The Huffington Post
(http://www.huffingtonpost.com/2011/06/13/negotiate-young-
over 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 the
Inclusion 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 Car
graduate 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
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10 DR Currents

11. Manage Conflict; Don’t Just Wait to
Resolve Disputes
By Barrett Hawks
C
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 Fault
a 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 Miami
proactively 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 when
disputes. One of the most valuable services they can the patient or the patient’s family had no idea medical error
provide 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 substantially
even with admissions of
lowered its medical claims costs
fault and apology where
and its insurance premiums.
appropriate. A second article
will describe contractual
processes that help to prevent
and de-escalate disputes,
going beyond the standard
arbitration and mediation
clauses. 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 by
will discuss some techniques
for recognizing and defusing Appropriate. the institutions themselves, but
also the keen interest of business
incipient conflict which are
readers in learning ways to
being explored and successfully
reduce their litigation costs.
practiced by a growing number of businesses and other
institutions. 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 instances
developed processes. In fact, arbitration is itself producing
requiring health care providers to discuss the outcomes
a 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 findings
The 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 by
the College of Commercial Arbitrators. The protocol, while Covenant Transport and Toro Lawnmowers each have
salutary, is another comprehensive and lengthy contribution widely reported proactive policies for settling personal
to an already complex process. Mediation is also becoming injury claims. In appropriate cases, Covenant’s CEO even
heavily encrusted with state law and regulatory “protections” attends the funeral of accident victims and apologizes
too numerous to cite here. While mediation and arbitration to the family. Toro has non-lawyer engineers contact the
will nevertheless continue to play a valuable role in resolving injured party, investigate the cause of the accident and
disputes, there seems to be a significant need for lawyers settle before the situation hardens into an adversarial
as well as ADR professionals to do more to assist clients in battle. These approaches often result in quick and less
managing conflict before disputes ripen to the point that they expensive settlements. When they do not, these companies
become adversarial and require courts or third party neutrals are able to concentrate their legal defense on the limited
Summer 2012 11

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. It
instances where the proactive approach does not succeed. may be that much activity of
As an example, Toro reduced over a few years its claims this kind occurs “below the radar,” but there would seem to
settlement 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 suggest
philosophy did not result in a rise in claims, showing that
Pollyanna approaches that will work in all cases. There will
there is no need to fear that a business with this philosophy
always be hard fought litigation, sometimes warranted by
will 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 intransigent
of damaging admissions of interest should consider that defendant. But, we can and should recognize that most
the results of the businesses and institutions cited suggest disputes can be settled by the parties with much less cost
otherwise. In addition, many states have recently passed than is normally incurred and with the satisfaction that a
laws making an apology or a statement of sympathy or voluntary settlement provides to the parties. Because we
benevolence 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 whenever
to “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, independent
health care providers seems unfortunate, particularly in neutral. Before his retirement in 2009, he was
light of the General Assembly’s findings: “The General a partner in Sutherland Asbill & Brennan
Assembly finds that conduct, statements, or activity LLP where for many years he focused
constituting voluntary offers of assistance or expressions on representing businesses in transactional
of benevolence, regret, mistake, error, sympathy or matters and litigation avoidance as well as
apology between or among parties or potential parties on serving as a mediator and arbitrator in
to a civil action should be encouraged and should not be a variety of business disputes. He also has
considered 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 for
approach have reinvented themselves as counsel to other Conflict Prevention and Resolution, is certified as a mediator by
companies desiring to consider similar policies. So, one the American Arbitration Association and is registered with the
might ask: Would the profession in general prefer to advise Georgia Office of Dispute Resolution.
12 DR Currents