Be neutral: a publication of the Georgia Office of Dispute Resolution, Nov. 2014

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Be Neutral - November 2014
A publication of the Georgia Office of Dispute Resolution
Message from the Commission Chair: Welcome Back & Pardon our Progress
I would like to give a hearty "welcome back" to the Be Neutral publication. Many of you may have wondered over the past year, "Where has Be Neutral been?" I can assure you that this valuable newsletter was not forgotten, but publication was temporarily deferred while the Office of Dispute Resolution (Office) was under renovation. While the Office hasn't externally displayed a vibrant "Pardon our Progress" sign, I can assure you that internally, the Commission on Dispute Resolution (Commission) and Administrative Office of the Courts (AOC) have been working diligently to revamp the Office.
One major transformation can be seen by the Office and AOC building upon their symbiotic relationship in order to increase the efficiency and flexibility of both agencies. Long time Office director, Shinji Morokuma, was promoted to the new role of Program Director, Office of Certification and Licensing for the AOC, where he now serves as director for both the Office of Dispute Resolution and the Commission on Interpreters. In return, the AOC is providing the Office with a deep pool of valuable resources and skilled employees in many diverse areas including legal services, investigations, human resources, registration, budget & finance, and administration.
During this transition, Shinji and the Office have been innovative leaders in the implementation of the new online registration system which is ready for the current registration season. Also, the Commission has been focusing on meaningful strategic planning to make sure that both the vision and mission for the future of the Office are met and are sufficient to help the Georgia Supreme Court fulfill its Constitutional mandate to "provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.
Fortunately, along the way, Commission member Ray Chadwick was willing to undertake the initiative to reconstitute the Liaison Committee to seek to build upon the valuable relationship with neutrals and to enhance the services provided and value added to registrants. Thank you to Ray and others for their efforts in this endeavor and for the much needed revival of the Be Neutral publication.
I appreciate your patience while the Commission, Office, and AOC work to improve this organization and the services provided to neutrals and to the citizens of this State. I am certain that the decisions and advances that are being made today within this organization will be fruitful and worthwhile for many years to come.
Judge Charles Auslander, Commission Chair
A Message from the Liaison Committee Chair
Recently all registered neutrals and ADR program directors received an email from me as Chair of the Liaison Committee of the Georgia Commission on Dispute Resolution in which I asked for comments, questions or suggestions concerning the Commission and Georgia Office of Dispute Resolution. Prior and subsequent to my emails, I had telephone discussions with a number of neutrals and program directors. Some have sent emails as well. The results are being provided to the Commission and GODR.
The Commission's Chair, Judge Charles Auslander, wants to ensure that neutrals and program directors have the opportunity to be aware of the work and activities of the Commission and GODR. Further, that neutrals and program directors have open lines of communication with both. He has asked the Liaison Committee to assist in achieving these goals. Of course, this is not meant to preclude direct communication with the Commission or the GODR.
The Liaison Committee is working closely with Shinji Morokuma, Director of the GODR, on a quarterly e-newsletter that will contain articles, announcements, and other information on various topics. Should you have anything you would like to submit for further issues please send it to Shinji or me.
Risking the adage "be careful what you ask for," I invite you to contact me by email or telephone with comments, suggestions or questions. My email address and office number are rchadwick@chadwickmediation.com and 706-8234250. Shinji's are: Shinji.Morokuma@gaaoc.us and 404-463-3788.
2014 Registration Renewal Season in Full Swing
The 2014 registration renewal season opened on October 1 a month earlier than in previous years so registered neutrals would have to time familiarize themselves with the new Georgia Court Registrar, which several judicial branch agencies are using to provide better service in their certification and licensing functions.
The on-time renewal deadline is December 31, 2014. A late fee equal to your regular renewal fee will apply after that date, so please renew before the end of the year.
To renew, you must use the new Georgia Courts Registrar to create a profile, answer a questionnaire, upload your continuing education form, and pay your renewal fee.
2014 ADR Institute Registration Opening Soon
"Registration will open soon for the 21st ADR Institute and 2014 Neutrals' Conference, to be held Friday, December 12, at the State Bar of Georgia Conference Center in downtown Atlanta, from 8:15 am to 3 pm. Come learn about current thinking in the ADR field and network with friends and colleagues. This year's conference will again feature a full roster of dispute resolution scholars and leaders offering thought-provoking presentations on a wide range of topics."
The conference will be live simulcast to the State Bar annexes in Tifton and Savannah.
"6 hours of CLE (including trial practice, ethics and professionalism hours) and 6 hours of CE will be available. Early registration fees will remain as they were last year at $170 for attorneys needing CLE and $115 for neutrals. On-site registration will be $200 and $145 respectively. The fee includes a boxed lunch and written materials."
"PLEASE NOTE: Due to the closure of the Spring St. viaduct in downtown Atlanta, the Spring St. entrance to the Bar conference center's parking deck is blocked. The only entrance will be from Marietta St. For more information on the closures and detours, please check the State Bar's website."
Check back under "What's New" on the GODR website or check the Institute for Continuing Legal Education's seminar schedule.
In Depth Articles
Mediator Practice Tips: Child Support Calculators and Worksheets
Divorcing parties with minor children are required by law to submit a child support worksheet to the court before being granted a divorce (O.C.G.A. 19-6-15(m)).* Therefore, mediators who neglect to ensure that parties have completed child support worksheets are doing their clients an enormous disservice and may be committing malpractice. Missing paperwork can delay divorces by months, severely disrupt families, and increase costs. And please make sure that the figures in the child support worksheet equal those in the mediated agreement they accompany.
Make it a habit to check the Georgia Child Support Commission website at least once a month so you don't miss out on the latest updates of the child support calculator. In fact, it is a good practice to start at the Child Support Commission website when beginning work on any child support worksheet. Right now you should be using version 9.0, which was released in July 2014.
If you need a brush-up on the child support worksheets, the Georgia Child Support Commission has posted five online tutorials to help you.
*The only exception to this requirement is for protective orders or consent agreements issued by the court under O.C.G.A. 19-13-4 to end acts of family violence.
CaseWatch for Arbitrators: 11th Circuit Sanctions for Frivolous Allegations of Arbitrator Bias
"Charges that an arbitrator was biased, had exceeded her powers, and had failed to receive evidence were roundly dismissed as meritless and wasteful of judicial resources by a district court and a federal appeals court this year. The appeals court emphasized its displeasure with the case by awarding the respondent, Ritz-Carlton Hotel Company, LLC, double its costs against claimants and claimants' counsel."

Marketing Tips: Ethical Hurdles to Marketing Your Mediation Practice Digitally
The Internet has been a wonderful invention for sharing information, and it has made it easier for people including ADR professionals to find the resources they need to succeed. However, as more opportunities have arisen on the Internet, we've also seen people misuse digital resources for marketing in ways that could be construed as unethical.

Marketplace

CE Calendar

Open Enrollment for Private Health Insurance Exchange Begins Nov. 15

The open enrollment period for the private health insurance exchange available to Georgia-registered neutrals will begin on November 15, 2014, and will remain open until February 15, 2015. If you are dissatisfied with the health insurance choices available to you in the public exchanges, then you may find what you are looking for in the private exchange. Visit www.memberbenefits.com/godr or call Member Benefits at 1-800-282-8626 for more information.

If you do not enroll during the open enrollment period, individuals will need to experience a qualifying life event to enroll in a qualified health insurance plan through the exchange. Below are some guidelines for how the Special Enrollment Period works:

Members must experience a qualifying life event in order to open up a Special Enrollment Period. What is a qualifying life event?

* Birth or Adoption* * Marriage or divorce* * Move to a new coverage area* * Involuntary loss of coverage* * Loss of Medicaid/CHIP eligibility*

* Loss of Subsidy eligibility* * Current plan closes* * Gaining citizenship* * Leaving incarceration*

Effective Date Rules

* Enroll between the 1st and 15th of the month: Effective 1st day of following month

* Enroll between the 16th and 31st of the month: Effective 1st day of the second following month

"If none of the above qualifying life events have occurred, there are still options that you may want to consider, such as a Short-Term Health Plan. ? But the easiest solution is to enroll before February 15, 2015. Visit www.memberbenefits.com/godr or call Member Benefits at 1-800-282-8626 for more information about qualifying for a Special Enrollment Period or Short Term Health plans. "

*Effective date is based on the date of event.

Check frequently at our website for the latest CE and training offerings. Remember, any ADR-related training you take counts as CE as long as you took it since your last renewal or your initial registration, whichever comes later. Lawyers, any CLE you took during that same time period counts as CE. Likewise, judges and CJE. Accountants and other professionals with CE requirements, same thing.

And remember, we posted three videos on our website that registered neutrals can watch for free to earn CE credit. Each video is one-hour long. Neutrals are free to watch the videos as many times as they wish, but we can only award 1 CE hour credit for each video once a renewal season. Please note the date you finished viewing each video so you can report it on your renewal form. Remember, registered neutrals are required to take at least 3 hours of CE each year in order to renew their registrations. Look for the link, "Continuing Education Videos," in the main menu of our website. For more information on what qualifies for CE, please see the "Help! I Need CE!" link on our website.

December 12

21st Annual Alternative Dispute Resolution Institute and 2014 Neutrals' Conference Time: 9 am 4 pm Location: State Bar of Georgia Conference Center, 104 Marietta St. NW, Atlanta, GA 30303 Cost: TBD Contact Info: Registration information will be posted when available Potential CE Hours: 6 hours

December 12

How to Use Mediation Skills in Your Field of Expertise Presenter: PeaceMaker Solutions, LLC Time: 8:30 a.m. - 12:30 p.m. Location: Mansour Center, 995 Roswell Street NW, Marietta, GA 30060 Cost: $100 Contact Info: www.peacemaker-solutions.com or 404.644.5523 Potential CE Hours: 3

December 13

Marketing Your Mediation Practice in the Digital Era - Ethically, Efficiently & Effectively Presenter: Digital Smart Tools, LLC Time: 8:00 a.m. - 4:00 p.m. Location: The Glenn Hotel (adjacent to the GA Bar Association) Cost: $445 GODR Members (group discounts available) Contact Info: www.digitalsmarttools.com/GODR2014.htm or 404.592.3367 Potential CE Hours: 6

Share This Publication

Please forward this newsletter to anyone who might be interested in ADR in Georgia courts. Forward it just as you would any other e-mail. If folks who are not registered neutrals want to receive the newsletter free of charge, they can submit their e-mail addresses in the subscription box at the bottom right of the home page of our website. And sending us feedback is easy just reply to this e-mail as you would any other e-mail. We want to hear from you !

1990-2014 Georgia Commission on Dispute Resolution

Newsletter designed and implemented by Digital Smart Tools

GODR 2014 Registration Renewal Instructions

2014 Registration Renewal Season in Full Swing
The 2014 registration renewal season opened on October 1 a month earlier than in previous years so registered neutrals would have to time familiarize themselves with the new Georgia Court Registrar, which several judicial branch agencies are using to provide better service in their certification and licensing functions.
The on-time renewal deadline is December 31, 2014. A late fee equal to your regular renewal fee will apply after that date, so please renew before the end of the year.
To renew, you must use the new Georgia Courts Registrar to create a profile, answer a questionnaire, upload your continuing education form, and pay your renewal fee.
Please follow these steps:
1 Read the Step-by-Step User Guide (www.georgiacourts.gov/RegistrarManual) and follow the instructions in the Neutral section (page 16).
2 Open the Registrar by navigating to https://gcr.onegovcloud.com using Google Chrome, Internet Explorer 11, Firefox, or Safari. Google Chrome is recommended for the best user experience.
3 Under New Account, choose Neutral from the menu. Click Create Account.
4 Complete every field with an asterisk. Make sure to choose the categories in which you are currently registered. Also, make sure to type all four years of your birthdate. Then, click Register.
5 You will receive an email from the Registrar. Click on the hyperlink in your email to verify your account. If you do not see the email immediately, check your spam folder.
6 Login to the Registrar with the username and password you created.
7 Scroll to the bottom of the page and click on Questionnaire 1. Answer every question and click Submit. Upload your continuing education form and any other documents as requested.
8 Click the green Payment button (located next to the Reset Password button). Complete payment.
9 Additional Step for Reinstating neutrals: After our office receives your initial application, we will ask you to submit the additional late payment by check or credit card.
You may log in as many times as you wish to complete your application. However, our office will not review or accept your application until you have completed all steps and have paid your fees.
These instructions are also posted on the GODR website. Look for the big purple box.
For assistance, please email neutrals@gaaoc.us or call 404-463-3808.

1990-2014 Georgia Commission on Dispute Resolution

Newsletter designed and implemented by Digital Smart Tools

Sanctions for Frivolous Allegations of Arbitrator Bias

CaseWatch for Arbitrators: 11th Circuit Sanctions for Frivolous Allegations of Arbitrator Bias
Charges that an arbitrator was biased, had exceeded her powers, and had failed to receive evidence were roundly dismissed as meritless and wasteful of judicial resources by a district court and a federal appeals court this year. The appeals court emphasized its displeasure with the case by awarding the respondent, Ritz-Carlton Hotel Company, LLC, double its costs against claimants and claimants' counsel.
In this case, claimants challenged the arbitrator's impartiality soon after the arbitrator was appointed by the American Arbitration Association. They presented as evidence of bias the fact that the respondent's parent company, Marriott, advertised on the arbitrator's firm's website. AAA denied claimants' request to remove the arbitrator. Claimants again raised bias allegations after the arbitrator denied claimants' duplicative discovery motions and other procedural requests. After the claimants missed a filing deadline on motion for summary judgment, the arbitrator declined to accept claimants' late filing, and the district court denied claimants' motion to remand the case, the arbitrator issued an award in favor of the respondent, including costs and attorney fees.
Claimants' counsel then filed a demand de novo with the district court asking for a trial by jury. The court ruled that the request was frivolous and denied it. When next the respondent filed to confirm the arbitration award, the claimants sought inter alia vacatur based on "evident partiality" of the arbitrator. A federal magistrate recommended that the motion to confirm be granted and the motion to vacate be denied. The magistrate found that the factual descriptions and arguments related to claimants' petition to vacate were "inaccurate." In adopting the magistrate's report and recommendations, the district court cautioned claimants' counsel not to file documents that were a "waste of judicial resources." The claimants appealed to the 11th Circuit Court of Appeals.
Noting that judicial review of arbitration decisions is among the narrowest in the law, the Court of Appeals held that the arbitrator was not evidently partial. Kathy Fowler et al. v. Ritz-Carlton Hotel Co. LLC, case number 14-11197 (11th Cir. August 19, 2014). The court dismissed the bias claim based on the allegation that Marriott advertised on the arbitrator's firm's website, as well as the claim that the arbitrator had failed to accept the summary judgment response filed late, had denied discovery requests and had applied an incorrect summary judgment standard.
Relying on the its 1998 decision in Gianelli Money Purchase Plan & Trust v. ADM Investor Servs., Inc., 146 F.3d 1309, 1312 (11th Cir. 1998), the court held that evident partiality applies only when either:
(1) an actual conflict exists, or (2) the arbitrator knows of, but fails to disclose, information that would lead a reasonable person to believe that a potential conflict exists. Any alleged partiality must be direct, definite and capable of demonstration rather than remote, uncertain and speculative." Id.
In this instance, the court said the claimants' allegations were "remote, uncertain and speculative" because the allegations neither alleged nor presented evidence that the arbitrator knew of the advertisement on one page of her firm's website. The court said that the ad, which appeared among those of other hotels on the website, was presumably for the information of firm visitors and was not direct and definite evidence of partiality.
In a footnote in its ruling, the court addressed claimants' later charge that the arbitrator had failed to investigate potential conflicts. The court stated that the it follows the standard adopted in the Second Circuit and set forth in Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S.492 F.3d 132, 138 (2d Cir. 2007) that a failure to investigate a potential conflict is not sufficient to establish evident partiality.
Further, the court dismissed the other allegations of bias as being based on the claimants' disagreement with the arbitrator's adverse rulings against claimants during the arbitration. "[W]e do not review the substance of an arbitrator's judgment," the court wrote. Similarly, the court rejected the claim that the arbitrator failed to receive evidence and such rejection was an independent vacatur ground under 10(a)(3) of the FAA. The court concluded that vacatur on this ground must show that the arbitrator's action was "in bad faith or so gross as to amount to affirmative misconduct" (citation omitted). Finally, to the claim that the arbitrator's award of attorney fees and costs "exceeded" the power of the arbitrator under 10 (a)(4), the court responded that the arbitration agreement included the arbitrator's authority to award whatever remedies are allowed by law and that the AAA rules permitting an award of attorney fees and costs (Rule 23) were incorporated into the arbitration agreement. The court wrote:
Even though the Plaintiffs present their arguments in terms of the Federal Arbitration Act, they ask us to do what we may not --- look to the legal merits of the underlying award...Accordingly, the Plaintiff's argument is foreclosed by our precedents.
The court added that the challenge to the arbitrator's award offered meritless allegations of arbitrator bias and that it was considering sanctions against the claimants for the filing baseless arguments. On October 22, 2014, the court, pursuant to Federal Rule of Appellate Procedure 38, awarded double costs against the claimants and their counsel.
John Allgood is of counsel at Ford & Harrison. For more than 20 years he has arbitrated and mediated cases in commercial, employment, construction and securities law, as well as in real estate and anti-trust matters. An adjunct professor of ADR at Emory University School of Law, he was a member of the U.S. Olympic Committee panel of arbitrators during the 1996 and 1998 Olympic Games.
Phone: 404-888-3832; fax: 404-888-3863; jallgood@fordharrison.com

1990-2014 Georgia Commission on Dispute Resolution

Newsletter designed and implemented by Digital Smart Tools

Ethical Hurdles to Marketing Your Mediation Practice Digitally

Marketing Tip: Ethical Hurdles to Marketing Your Mediation Practice Digitally
The Internet has been a wonderful invention for sharing information, and it has made it easier for people including ADR professionals to find the resources they need to succeed. However, as more opportunities have arisen on the Internet, we've also seen people misuse digital resources for marketing in ways that could be construed as unethical.
Online Reviews Regardless of what you try to purchase today, you're sure to find an online review site that will rate the purveyors, and that's also true for professional services. Whether it is Yelp, Kudzu, or Angie's List, there's always an opportunity for clients to express their opinions on the services they were provided. In ADR this is typically an issue for providers who handle domestic issues, small claims and other similar matters, but the Internet does offer an opportunity for everyone to voice their opinions.
There are two basic ethical issues that arise with online reviews. First of all, if your practice is listed on any of these sites (if it's on Angie's List, you'll only know this if you are a paid member), it is unethical to solicit or compensate people to post a good review for you. Similarly it's unethical for you to be involved in any way in posting negative reviews for your competition. In fact, in reading the terms of service for most of these sites, you'll find both of these actions are expressly prohibited and, if discovered, will result in your business being banned.
The second ethical issue that arises with regard to these sites is how, or in fact if, you respond to the comments that are posted. Clearly a blistering reply that impugns the intelligence, veracity, or heritage of the poster is unethical. However, not only is it unethical, it might also have the exact opposite effect you had desired. Remember, what happens in mediation is confidential, and anything you say online about a mediation is subject to that restriction. The best suggestion is to post a reply that indicates to the poster that you will be happy to discuss their issues offline and that you'd be happy to bring in a third party to facilitate the negotiation. (For a more detailed discussion of mediation confidentiality, please see Advisory Opinion 8 on the GODR website.)
Social Media Comments Although social media are not review sites, the reality is that any open forum for comment is going to pull in verbiage similar to that on review sites. Thus the same ethical constraints exist. You can reply with a request to take the discussion offline, but you cannot disclose or admit by virtue of engaging in a discussion online what has happened within an ADR proceeding.
Many ADR professionals are active in online professional discussion groups on LinkedIn and find it a good way to increase market awareness of their practice. Again it is important to note that no information from within a mediation can be discussed here without violating your ethical obligations.
Endorsements About 18 months ago, LinkedIn started offering a service they call endorsements. To ensure that people would use it they made it simple to endorse someone, probably too simple. Now when you log into LinkedIn you'll get a box that lists four of your connections and ask if you endorse them for "XYZ." If you click the button, you've endorsed them.
Consider for a moment your own endorsements on your LinkedIn account. Do the people who endorsed you for litigation, mediation, facilitation or any other service really know how you handle any of those functions? In most cases they've never even been at your table. They connected with you on the LinkedIn platform because they knew you socially or recognized your name. Thus when you tout your LinkedIn endorsements, you're using uninformed knowledge to reinforce public perception of your skill set. To most people this behavior is considered unethical, and you should really consider carefully how you use this information.
Testimonials If you're lucky, at the end of an engagement you may receive a thank you note that includes wonderful flowery statements about your skill set. There's normally other information in the note that if disclosed would violate the confidentiality of the mediation. However, you'd really like prospective clients to hear the sender's compliments. Many of you would immediately take a snippet or two out of this letter and send it to your marketing team for inclusion in your printed collateral and on your website. Did you get the writer's permission to use his or her words? Are you going to attribute the quote to the sender? Before you start taking their words out of context and publicizing them, either with or without attribution, you need to get the writer's permission. To do anything else would be unethical. Posting general testimonials is acceptable, but testimonials that would identify a specific mediation are unethical.
Connections ... Disclose or Not? Consider for a moment that you're booking a mediation, and you realize (if you're lucky) that you are connected to opposing counsel or one of the parties on LinkedIn or perhaps they have "liked" your Facebook business page. Do you have to disclose that "relationship?" What constitutes a "relationship" in our digital world? As a general rule, we advise our clients to include a statement in their letters of engagement and agreements to mediate that refers to the fact that they are generally connected to many people on the Internet, but that these connections are as a result of sharing general information and that you have not engaged in extended discussions (either online or in person) with any of the parties to this mediation that could reasonably be construed as a "relationship." Of course, if you've had extended online discussions, you need to disclose them, but as a general rule, if you wouldn't recognize individuals or their names if you met, them then you aren't being unethical by not disclosing a relationship, because a relationship doesn't exist.
Sharing Content You see a great article in the media and share it by posting a link to it and maybe a comment about it in your e-newsletter or on your website or a social media site. Are you being unethical given that it isn't your own copyrighted material? First of all, the key here is that you're sharing it, not claiming it as your own work product. Second, you're linking to it on the original author's or publisher's website rather than copying the entire piece and posting it on your own site.
If you know the original authors, it is considered good form to send them a quick note and ask if they mind your publishing a link to their content. The chances are that they will be thrilled to get the additional exposure; I've only been turned down once in all the years we've been doing this. There is one caveat: if you are publishing for consumption in Canada (even if only a few of your readers are in Canada), it is critical to get permission from the copyright holders to share their work product as this issue is currently being litigated there.
Future As the Internet evolves in coming years, the ethical challenges that we all face as we market our practices online will only grow. When considering whether what you are doing is ethical or not, you should look first to the guidelines that govern your neutral registration. Clearly you cannot do anything that would violate those. After that, consider reversing the situation; would you feel violated if another mediator had done this to you? This holds true for sharing work product, touting endorsement or sharing glowing comments. When in doubt, take the safe route and find an alternative article or endorsement to use to market your practice.
Michele Gibson is a Georgia-registered neutral and a certified emerging media consultant. She is the president of Digital Smart Tool, LLC an e-marketing firm offering website design, SEO, electronic newsletters, social media coaching, and marketing training seminars.
Phone: 404-592-3367 E-mail: mgibson@digitalsmarttools.com

1990-2014 Georgia Commission on Dispute Resolution

Newsletter designed and implemented by Digital Smart Tools