A Comparison of Georgia and Alabama Alternate Dispute Resolution Laws
By: Cynthia Johnson NelsonLaw Student - Widener University School of Law (ADR Seminar-2001)
About this Document
The purpose of this document is to give you the current Alternate Dispute Resolution Laws in both Georgia and Alabama, and to provide a comparison of this area of law in these states.ADR in Georgia State Courts Generally
Georgia may be ahead of many other states in the area of ADR. Georgia has developed a policy-making body appointed by the Georgia Supreme Court to oversee the development of court-connected ADR programs in Georgia. This body is The Georgia Commission on Dispute Resolution. The Commission has created a statewide plan for ADR in Georgia, which can be utilized by any superior, state, probate, magistrate or juvenile court in Georgia. Civil Arbitration falls into "Georgia Arbitration Code" O.G.C.A. Title 9 §§ 9-9-1 - 9-9-18.Who are Arbitrators, Mediators, and Neutrals in Georgia?
Mediators are not required to have subject matter expertise, but must undergo training in a court-administered program for at least twenty hours of classroom training, and observation of or co-mediation with a veteran mediator in at least five mediations. Mediators in divorce and custody cases must take meet additional requirements beyond the required hours for other mediators. These Mediators must take domestic relations mediation training, which is at least 40 hours of training which substantially meets the standards of the Academy of Family Mediators. Mediators in divorce and custody cases also must possess least a baccalaureate degree from an accredited four-year college. Arbitrators must receive at least six hours of training in a program, which qualifies, for CLE credits. For judges and persons with acceptable experience as an arbitrator, the Chair of the Committee on Training and Credentials and the Director of the Georgia Office of Dispute Resolution may approve other training, experience, or education. Arbitrators must be lawyers. Panels of lawyers may conduct in court-annexed or court-referred non-binding arbitration programs; however, arbitrators conducting arbitrations alone must have five years of experience. Neutrals or Case evaluators must be lawyers with extensive subject matter expertise in the area of the litigation in question. Case evaluators or early neutral evaluators must receive at least six hours training for their role.ADR in District Courts of Georgia
There are three (3) different District Courts in Georgia: The Middle District of Georgia, The Northern District of Georgia, and The Southern District of Georgia. Each District has some distinct and varied rules for ADR.Middle District of Georgia
Arbitration - The Middle District of Georgia was one of the ten courts initially authorized by 28 U.S.C. §§ 651-658 to provide voluntary, nonbonding court annexed arbitration. Section 28 U.S.C. §§ 651 (b) says each United States district court shall create and start its own alternative dispute resolution program, by local rule adopted under section 2071(a), to encourage and promote the use of alternative dispute resolution in its district. Case Types are governed by Local Rule 11.3. Cases, which qualify for arbitration, include contract, tort and other civil cases seeking damages of $150,000 or less. Any eligible case is automatically referred to arbitration within 20 days of being notified of the answer by the clerk of the court; however, parties may reject the referral for any reason within a designated time period. Arbitration Hearings are determined by the arbitrator and the parties. However, the hearing must be completed within ninety (90) days after selecting the arbitrator. The hearing takes place at the courthouse, and lasts three to four hours. Within ten (10) days of the hearing the arbitrator files the award with the clerk, who mails the decision to all parties. De Novo Request must be made within thirty (30) days of the arbitrator's decision. No fees or sanctions are levied if the requesting party does not obtain a better award at trial. Neutrals are appointed. They are also attorneys that have been members of the state bar for at least ten years; admitted to practice in this court or any other U.S. district court; and determined by the chief judge to be competent to perform the duties of an arbitrator. The court requires no training in arbitration.Northern District of Georgia
ADR Resolution Plan - The Northern District of Georgia uses Local Rule 16.7 to govern alternate dispute resolution. This district has an ADR Plan, which includes mediation, early neutral evaluation, and arbitration to comply with 28 U.S.C. §§ 651. The Utilization of ADR is visited at various stages in the litigation of a civil case, and litigants and their counsel are required to consider whether use of an alternative dispute resolution process is desirable or appropriate in their particular case. Case Referrals may be made by a judge in his or her discretion to refer any civil case to a non-binding ADR process, e.g. early neutral evaluation, mediation, or non-binding arbitration. Upon the consent of the parties, the judge may refer any civil case to binding arbitration, binding summary jury trial or bench trial, or other binding ADR process. The timing of the referral to a binding or non-binding ADR process under this section is within the discretion of the referring judge. ADR Conferences will be arranged by the ADR neutral within thirty (30) days from the date of the notice naming the ADR neutral, unless otherwise ordered by the judge. Report to the Court will be filed within five (5) days following any ADR process. The ADR neutral will file a Report indicating the date and length of the ADR process and whether all required litigants were present. If a settlement agreement is reached, the Report will indicate that a settlement is reached and the date by which the final settlement agreement will be executed and the dismissal filed. The written Report is prepared by the ADR neutral (or at the ADR neutral's request, one of the litigants). It is signed by the litigants, and delivered to the ADR administrator. If a settlement is reached, the ADR neutral, or one of the litigants at the ADR neutral's request, prepares a written document reflecting briefly the terms of the settlement agreement which is signed by the litigants and retained by the ADR neutral and the litigants.Southern District of Georgia ADR
The Southern District of Georgia ADR is governed by Local Rule 3.3, which became effective September 1, 1994. It requires counsel in the beginning of each case to advise their clients of the availability of mediation, binding arbitration, nonbinding arbitration, and assignment of the case to a magistrate judge. Exempt Cases include social security cases, habeas corpus cases, bankruptcy proceedings, condemnation cases not involving real property, mortgage and foreclosure cases, government collection actions, actions to enforce or register judgments, civil forfeiture actions, cases that will clearly be transferred to multi-district litigation, and claims for relief under maritime or admiralty jurisdiction.ADR in the Appeals Court
The Eleventh Circuit Court of Appeals has a mediation form of ADR. The Kinnard Mediation Center (formerly known as the Circuit Mediation Office) conducts mediation of civil appeals under Federal Rule of Appellate Procedure 33 and Eleventh Circuit Rule 33-1. The mediations are conducted by the Court's mediators. These mediators are full-time employees of the Eleventh Circuit, have extensive trial and appellate experience, and significant training and experience in mediations. Both Georgia and Alabama are in the Eleventh Circuit Court of Appeals. For more details about the general rules of the Eleventh Circuit Court see their Court Rules. Case Types eligible for mediation include all fully civil appeals where both parties are represented by counsel except prisoner, habeas corpus, and INS appeals. Case Selection is made by the mediators. They review eligible cases and select a cross-selection of those most suitable for mediation. The Mediation Conference includes the possibility of settlement, simplification of the issues, and any other matters the circuit mediator determines may aid in the disposition of the appeal. The circuit mediator conducts the conferences in a series of joint and separate sessions, talking with both sides together and then with each side separately. Every effort is made to generate offers, counteroffers, and alternative settlement options until the parties either settle or know the case cannot be settled.Post Conference Procedures require both parties to agree before any action is taken.
ADR in Alabama State Courts
Alabama also has a commission to oversee the development of ADR in their state. The Alabama Supreme Court created the Alabama Supreme Court Commission on Dispute Resolution on July 1,1994. The commission oversees the operations of the Alabama Center of Dispute Resolution and serves as a focal point for the supervision, coordination and implementation of the broad development of ADR in Alabama, both in the state court system and the public at large. The Alabama Center for Dispute Resolution, Inc. is a non-profit corporation organized to "develop, implement, administer, assist, and manage alternative dispute resolution (ADR) programs in the courts, neighborhoods, educational facilities and government agencies within the State of Alabama."Rules for Arbitration and Mediation
Arbitration in Alabama is governed by Al. Code §§ 6-6-1 - 6-6-16. However, the state is currently drafting a Proposed Alabama Arbitration Act. Mediation is governed by Alabama Civil Mediation Rules. The state has an extensive listing of mediators in each county a litigant could choose from. Mediators are registered with the state for one year and pay an annual fee of $100 and a one time $20 application fee.
Who are Mediators and Arbitrators?
Mediators must submit an Application for Registration to the Alabama Mediator Roster if they are qualified and meet all the requirements for Mediator Registration Standards and Procedures. Qualifications for mediators include good character, licensed as an attorney by one of the fifty states of the United States or the District of Columbia and in good standing, with four years' experience in the practice of law; or have served professionally as the mediator in at least 10 mediations within the 2 years immediately preceding submission of an application for registration. Mediators must also agree to subscribe and adhere to the Alabama Code of Ethics for Mediators and the rules of the center for mediator registration. For more detailed information see the Mediator Registration Standards and Procedures. Training includes successful completion of a 20-hour mediation-training program approved by the center. To be approved, training programs must include as part of their curricula, at a minimum, mock mediation exercises and ethics education. Pro Bono mediation services to the public, upon request, for at least 10 hours annually will be expected for each mediator. Domestic mediation requires additional qualifications, which include being licensed as a physician by the state and in good standing, and certified in the practice of adult or child psychiatry; or licensed as a Certified Public Accountant by the state and in good standing, with four years' experience in the practice of accountancy; or engaged in a practice for four years in social work, mental health or behavioral sciences, with a bachelor's or advanced degree in one or more of these fields; or have served professionally as the mediator in at least 10 mediations, at least 5 of which are domestic relations disputes, within the 2 years immediately preceding submission of an application for registration. The individual must also successfully completed a 40-hour mediation course on domestic relations issues which has been (a) certified by the Academy of Family Mediators (AFM) or (b) approved by the center as functionally equivalent or superior to an AFM 40-hour course.Arbitrators currently have no formal requirements for arbitrators, but the state is working to promulgate standards soon.
ADR in District Courts in Alabama
Alabama has three district courts, The Middle District of Alabama, Northern District of Alabama, and the Southern District of Alabama.
The Middle District of Alabama
The Middle District of Alabama governs ADR under local rule 16.1(c) . In this court almost all civil cases are eligible for voluntary settlement assistance with one of the district's three magistrate judges. The court also has a court-annexed mediation, which is governed by local rule 16.2.The Northern District of Alabama
The Northern District of Alabama has a Three-Track ADR Program. This program includes a Mediation Track, Mediation-Arbitration Track (Med/Arb), and an Open Track. Counsel or Unrepresented litigants must attend a conference with the court early in the litigation process to determine whether the case is appropriate for any kind of ADR. Unless specifically excluded by the court or by the assigned judge, all categories of cases may be considered for referral. The Mediation Track requires litigants meet with a mediator selected by the litigants or appointed by the court. The mediator/neutral is sometimes an expert in the subject area of the dispute. The mediator facilitates settlement discussions among litigants to identify underlying issues and develop a settlement package. The Mediation-Arbitration Track (Med/Arb) combines mediation and some features of arbitration. A dispute is first submitted to mediation. If the parties are unable to reach a mediated agreement, the neutral takes the dispute into the arbitration phase. In the arbitration stage, parties may present witnesses, documents, and other exhibits, and they may make oral presentations summarizing the facts and law. Based on these presentations, the neutral issues a nonbinding decision. The Open Track, parties may use any other form of ADR, either court-sponsored or private, with the approval of the assigned judge. A single ADR process or combination of ADR processes is used. The court will also approve use of the summary jury trial in appropriate cases and if the parties request it. Case types include all civil cases except categories of cases expressly excluded by the court as a whole or by an individual judge for cases assigned to that judge. The ADR conference is held when sufficient discovery has been conducted so the parties understand the strengths and weaknesses of the case or at any earlier time by agreement of the parties and with approval of the court. The neutral, after consultation with counsel, sets the date for each ADR conference. Conferences are held at any location agreeable to the neutral and parties or as otherwise directed by the court. De novo request is permitted when a case is referred to the med/arb track and the parties proceed to non-binding arbitration, they have thirty (30) days to reject the arbitrator's decision. If it is not accepted and the case proceeds to trial, the rejecting party must obtain a better result at trial or pay to the other party all costs and attorney's fees incurred from the date the arbitrator received the notice rejecting the award.Neutrals are people who have applied to the court and based on their training or experience, are considered by the judges to be qualified to serve as mediators and arbitrators. Any person placed on the panel may be removed for cause at the discretion of the chief judge. There is not an established formal court-sanctioned training program.
For more detailed information on ADR in the Northern District of Alabama see their Alternative Dispute Resolution Plan.The Southern District of Alabama
The Southern District of Alabama has a primary ADR program, which consists of mediation. The mediator can hold private meetings with any party or counsel, facilitates discussions among the parties to help them identify underlying issues and develop a settlement. Testimony usually is not a part of the mediation sessions, but the parties may request and present witnesses if the mediator allows. Case types eligible for mediation include all civil cases. Each judge decides which cases or types of cases should be referred to or excluded from mediation. Report. The mediator must report the results of the mediation process to the court. If a settlement is reached, a party prepares a written summary of the agreement. The mediator reports to the court whether a consent order, a stipulation of dismissal, or other document will be filed and by what date. If a settlement is not reached, the mediator reports that a mediation conference was held but that no settlement was reached. Neutrals Qualifications and training. Persons selected for the court's panel of neutrals must have, membership in good standing in the Alabama bar and the bar of the district court. At least seven years of law practice, with at least 50% of that experience in litigation. Extensive documented experience as a mediator; and experience as a former judge of an Alabama trial court. Or experience as a former district, magistrate, or bankruptcy judge in any federal court in Alabama. A law degree is not required but is highly recommended. Candidates must also complete a mediation training course by a recognized group specializing in ADR. The training must include instruction in ethical issues relating to ADR. Panelists and others mediating a case under the ADR plan must also agree to be bound by the ADR plan. The court appoints candidates to the panel and may remove any panelist. For more detailed information on ADR in the Southern District of Alabama see their Alternative Dispute Resolution Plan.Current Arbitration Case Law
Georgia Arbitration Cases
Consumer Arbitration
In the Georgia Supreme Court case of Crawford v. Results Oriented, Inc., and Crawford v. Green Tree Financial Servicing Corporation, and Crawford v. Cavalier Homes of Alabama Inc. et al., Nos. S00G1817, S00G1820, and S00G1992. The Appellant Crawford, filed Certiorari seeking review of the Court of Appeals reversal of the trial court’s ruling refusing to compel arbitration of Mr. Crawford's claims. The trial court's ruling was based two factors: the arbitration clauses were procedurally and substantively unconscionable, and that Cavalier Homes, as the issuer of a written warranty was prohibited under the Magnuson-Moss Warranty Act from limiting Mr. Crawford's avenues of recourse to binding arbitration.
The facts of the case begin in August 1997. Mr. Crawford paid more than $76,000 for a mobile home manufactured by Cavalier Homes, sold by Assured Housing and financed by Green Tree. Before purchasing, Mr. Crawford made three trips to the Assured Housing lot to examine model homes and discuss the sales transaction: price, warranties and financing. Mr. Crawford claims that he was not advised that if there were problems with his new mobile home, he would have to pay for an arbitration proceeding to enforce any remedies to which he was entitled.
On the day of the sale, an Assured Housing manager presented Mr. Crawford with a stack of papers approximately one inch thick, assuring him that they were standard documents for mobile home sales. Mr. Crawford claimed that he was given documents which contained terms not discussed by the manager. Mr. Crawford was then guided through the stack, requesting his signature and initials at various points.
Among these papers, Mr. Crawford signed sales documents that included two mandatory arbitration provisions. The first appears as §10 of the Acknowledgment and Agreement between Cavalier Homes, Assured Housing and Mr. Crawford (herein "Cavalier Homes Clause,") and requires Mr. Crawford to arbitrate any dispute through the American Arbitration Association ("AAA"). The second appears as § 14 of the Retail Installment Contract and Security Agreement between Assured Housing, Green Tree and Mr. Crawford (herein "Green Tree Clause,"); under this clause, Assured Housing and Green Tree have reserved their rights to sue Mr. Crawford in court to enforce the monetary obligation secured by the manufactured home or to foreclose on the manufactured home.
Mr. Crawford's claimed from the time it was assembled, his home has never been correct. He stated the two halves of the prefabricated home have never matched properly and the home cannot be leveled. After giving Assured Housing and Cavalier Homes eleven months to repair or replace the unit, Mr. Crawford attempted to initiate an arbitration proceeding, only then learning of the fees and costs associated with arbitrating this complaint.
The Appeals Court Rationale
The Appeals Court stated the trial court, in finding that the two arbitration clauses were unconscionable, only focused on the fees and costs of arbitration instead of the filing fee in the State Court of Carroll County and Crawford's lack of sophistication.
They found no evidence that, at the time of signing the documents, Crawford had any idea of the costs of arbitration. In fact, he denied any knowledge of the requirement to arbitrate at all at that time. Also, the Court stated there was only hearsay evidence of the after acquired knowledge of Crawford regarding costs.
The court also stated that Crawford has failed to show such coercion, either procedural or substantive, that would be a defense to Green Tree's motion to compel arbitration of the merits of the dispute or that would merit the trial court's order that the payments due Green Tree be made into the registry of the court pending resolution of the dispute.
In reference to the Magnuson-Moss Warranty Act the Court stated the trial court erred in finding that arbitration was precluded based on the Magnuson-Moss Warranty Act, supra. The stated the Act does preclude a warrantor from denying the right of a consumer to litigate instead of arbitrate a warranty dispute, Green Tree is neither "a supplier, warrantor, or service contractor" covered by that Act. 15 USC §§ 2301 (4), (5), (8); 2310 (d), (f).
The Court also addressed the notion that express warranty claims had to be litigated under that Magnuson-Moss Warranty Act. The trial court relied on Southern Energy Homes v. Lee, 732 S2d 994 (Ala. 1999) for its conclusion. However, the Appeals Court pointed out that the case has recently been reversed by Southern Energy Homes v. Ard, 2000 Ala. LEXIS 218 (Ala. 2000), of United States Supreme Court cases discussing the FAA and its relationship with other federal statutes.
The Court adopted that analysis and concluded that the Magnuson-Moss Warranty Act does not preclude arbitration of express warranty claims. The Court held the trial court also erred in not granting Cavalier's motion to compel arbitration of the express and implied warranty claims.
Read the entire detail of the Appeals Court Decision in this Case.
Attorney Fee Arbitration
Another Case in the Supreme Court Is Nodvin V. State Bar Of Georgia 273 Ga. 559. The case came to the court after Nodvin's former client filed a petition with the Bar's Committee on Arbitration and Fee Disputes. Nodvin challenged the constitutionality of the arbitration mandate and the jurisdiction of the Bar. After Fulton County Superior Court Judge Melvin K. Westmoreland rejected Nodvin's challenge, Nodvin appealed to the Georgia Supreme Court.
The State Rules, which governs fee arbitration, is State Bar Rules 6-303 (a), 6-502. Nodvin’s primary argument is that these rules violate his equal protection rights. The Court stated that the state has a “compelling” interest, which is greater than the requirements of the rational basis test, which requires only a “legitimate” interest in this issue.
The Court further, stated that maintaining public confidence in the judicial system is a legitimate state interest, which requires attorneys to justify their fees in an inexpensive forum before an impartial panel is rationally related to the maintenance of the public’s confidence in the legal system and to the interest in minimizing the burden on both the client and the attorney. The Court held that the challenged rules do not violate Nodvin’s equal protection rights.
Nodvin also argued due process, and constitutional guarantee of a trial by jury in civil cases, which the Court also held were not violated.
Alabama Cases
Consumer Arbitration
In a similar case in Alabama , Palm Harbor Homes, Inc.v. Turner regarding a manufactured home and arbitration the Alabama Supreme Court produced the same result as the Georgia Supreme Court.
The facts of this case began in August of 1999. The Turners similar to Crawford purchased a manufactured home. The Turners sued Palm Harbor in Mobile Circuit Court alleging violation of Magnuson-Moss Act by breaching express and implied warranties it made to the Turners.
The Turners relied on Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala. 1999), which had been overruled. This is the same case relied on in the Crawford Case. However, the Turner’s argued that at the time of their action the case had not been overruled and the Court should not act retroactively in their case. The Turners also argued that the arbitration agreement was unenforceable because it did not state the cost of filing fees and other fees within the document which was not consistent with the Magnuson-Moss Act.
The Courts Rationale
The Court stated that it would not be unfair to retroactively apply the new case Southern Energy Homes, Inc. v. Ard to all cases on direct review. This case stated that the Magnuson-Moss Act invalidates arbitration provisions in a written warranty issued by a manufacturer of goods.
The Court further stated that the Randolph v. Green Tree Fianancial Corp., 178 F.3d 1149 (11th Cir. 1999) which the Turners relied on for their filing fees argument had been overruled by by the US Supreme Court. The Supreme Court in that case stated that invalidating an agreement based simply on the lack of cost is contrary to the federal policy favoring arbitration agreements. The Court held that based on Ard and Randolph the denial for arbitration is revered and remanded.
What about Local Rules?
Local Court Rules
The links below will take you to the local rules for counties in Georgia.
Alapaha
Judicial Circuit Superior Court ADR Procedures
Clayton
Judicial Circuit Alternative Dispute Resolution Rules
Cobb
County Superior Court Mediation Rules
Conasauga
Judicial Circuit Superior Court ADR Rules
Cordele
Judicial Circuit Alternative Dispute Resolution Rules
DeKalb
County Courts Multi-Door Courthouse Dispute Resolution Program Policies and
Procedure
Dublin
Judicial Circuit Alternative Dispute Resolution Rules and Procedures
Fulton
County Alternative Dispute Resolution Program Rules
Gwinnett
Judicial Circuit Alternative Dispute Resolution Rules and Procedures
Seventh
Judicial Administrative District Mediation Rules
Sixth
Judicial Administrative District Alternative Dispute Resolution Rules
South
Georgia Judicial Circuit Alternative Dispute Resolution General Policy and Rules
Southern Judicial Circuit Alternative Dispute Resolution Rules
The links below will take you to the local rules for counties in Alabama.
Gulf Shores Municipal CourtWilliam E. Hereford, Circuit Judge, 30th Judicial Circuit of Alabama
Overall Comparison
After taking a look at both Georgia and Alabama Arbitration and Alternate Dispute Laws you will find the States very similar. Although, Alabama seems to weigh heavily upon mediation as opposed to arbitration, the state is currently drafting news rules regarding arbitration. The qualifications to be come mediators in both states are not exactly the same, but they are not drastically different. The major differences seem to take place in the various state district courts. There it seems to be the variation of not only different standards for neutrals, mediators, or arbitrators, but also the type of cases and the amounts allowed in each district.