From the Director:
What We've Got Here is Failure to Communicate
Alex Kozinski is my new favorite judge.
A few weeks ago, I heard Judge Kozinski, chief judge of the U.S. Court
of Appeals for the 9th Circuit, address a packed house of lawyers and
law students at Georgia State University College of Law. The stated
point of his speech was that images and props are often more powerful
than words during oral argument. However, the subtext of his speech
was closer to my heart: that litigation is a mistake in most cases
that can lead to unexpected consequences, and that genuine
communication can prevent and defuse lawsuits.
Kozinski’s court comprises the largest federal appellate circuit in
the country. Because it covers the West Coast, home to Silicon Valley
and Hollywood, the 9th Circuit hears many intellectual property,
trademark and patent infringement cases. So Judge Kozinski drew from
such cases to make his points.
United States v. Adams,
383 U.S. 39 (1966): Adams patented a revolutionary battery. He
showed it to the Army and Navy, which dismissed the device to his
face, but then had the battery built in huge numbers without Adams’s
knowledge or permission. The new battery was widely used in military
hardware and was a huge asset during the war. When Adams learned that
the military had hijacked his invention, he sued the government for
patent infringement and won in the Supreme Court. According to Judge
Kozinski, Adams was not seeking fame or fortune. He wanted respect,
and he was angry and hurt that the military did not thank him or even
acknowledge his pivotal role in the war effort. An apology for
stealing his invention and some sincere words of gratitude from the
government probably would have satisfied Adams, Kozinski said.
Instead, he and the government had to waste precious time and money
fighting all the way to the highest court in the land.
Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986): Disc jockey Rick Dees wanted to record
a parody of the Johnny Mathis performance of “When Sunny Gets Blue,”
so he asked the copyright holder, Marvin Fisher, for permission.
Fisher denied Dees permission, but Dees nonetheless recorded and
released the parody – a 29-second ditty named “When Sonny Sniffs
Glue.” Fisher, feeling insulted and disrespected, sued Dees for
copyright infringement. Fisher lost at trial and on appeal, the
courts finding that Dees’s use of the song fragment was clearly a
parody of Mathis’s singing style and therefore not an infringement on
Fisher’s copyright. Judge Kozinski said that here, too, a civil
conversation between the parties and an apology from Dees to Fisher
probably would have resolved the matter.
Mattel v. MCA Records,
296 F.3d 894 (9th Cir. 2002): In 1997, the little-known music group
Aqua recorded a little-noticed song called “Barbie Girl,” released on
MCA Records. Mattel, maker of the Barbie doll, sued MCA Records for
trademark infringement, alleging – apparently without irony – that the
song turned Barbie into a sex object. Mattel’s case was dismissed at
trial, and the dismissal was upheld on appeal by Judge Kozinski
himself, who found the song to be a parody and famously concluded his
opinion with the admonition, “The parties are advised to chill.” Of
course, Mattel’s suing MCA Records generated more publicity for the
band and the song – and more opportunities for Barbie to be recast as
a sex object – than if Mattel had just ignored the whole issue.
Ironically, Mattel itself later used the “Barbie Girl” song in several
Barbie doll commercials. Judge Kozinski’s points: the lawsuit
created unforeseen negative consequences for Mattel, and was a wasted
opportunity for Mattel and MCA to collaborate from the very beginning
on a mutually beneficial publicity plan.
Louis Vuitton v. Plesner
(2011): In 2011, Danish artist Nadia Plesner, who wanted to call
attention to the atrocities in the Somalian civil war, created a
t-shirt bearing the image of an emaciated boy holding a Louis Vuitton
handbag decorated in its signature multi-colored repeat pattern. LV
sued Plesner in a European court for copyright infringement, demanding
thousands of Euros in penalties for each day the image appeared on
Plesner’s website. The court in The Hague ruled that Plesner’s right
to freedom of expression outweighed LV’s right to protect its brand
and ordered LV to pay the Plesner’s legal fees. Judge Kozinski’s
points: LV lost in court and in the court of public opinion. Instead
of suing, the luxury brand could have collaborated with the artist on
a campaign that would have brought good will to the brand and aided
Plesner in her goal to highlight the Somalian tragedy.
Through these and other
examples, Judge Kozinski argued that lawsuits are often unnecessary
and messy, doing more harm than good and producing unanticipated
results. (He referred to the “Streisand effect,” the phenomenon in
which attempts to suppress information result in more disclosure of
that information, named after Babs’s spectacularly abortive legal
attempts to keep photos of her beachfront residence off the
Internet.) Lawsuits often are the result of failures of
communication, of the dominance of litigation warriors over thoughtful
advisors, he said. More lawyers should counsel their clients to
invest their energy and money in processes such as mediation that
allow parties to talk to each other, take control of their
disagreements, and to tailor resolutions that are not only mutually
beneficial, but predictable as well. Lawsuits should be the last
resort, he said, not the first resort.
Alex Kozinski is my new favorite judge.
Morokuma, Director, GODR
2012 ADR Institute
December 14 Registration Opens!
The 19th Annual ADR Institute and 2012 Neutrals’ Conference will be
held Friday, December 14, 2012, at the State Bar of Georgia Conference
Center in Atlanta. For the first time, the Institute will be
broadcast live to the State Bar of Georgia offices in Savannah and
Tifton. This year’s conference will once again present an agenda of
engaging local and national presenters on a broad variety of topics in
the ADR field. At least 6 hours of CE and 6 hours of CLE will be
available. Conference fees were held to last year’s levels. A
student rate – half of the attorneys’ early registration rate – is
available again upon request, whether registering early or on site.
Register now at:
On-time Renewal Season
Runs November 1-December 31
The 2012 registration renewal season will begin November 1, with an
on-time renewal deadline of December 31, 2012. Any renewal
applications submitted after December 31, 2012, will be considered
late, and late fees will apply. The late renewal deadline is April
30, 2013. Neutrals who do not renew by that date will be considered
inactive. All neutrals will need to renew, except those with a
registration expiration date of 1/1/2014. Check your information by
logging into your neutral account. Find login instructions
Just as last year, only online renewals will be accepted in order to
streamline the renewal process. Online renewals should take most
neutrals 5-10 minutes to complete.
Online renewal access will be available through your personal online. The online renewal application is
already populated with your personal information, so most of you will
need only to enter your continuing education information before
proceeding to payment.
Find login instructions
The basic renewal fee is $125; it is $150 for those registered in
domestic relations mediation. Note: if you submit your
application online after December 31, 2012, it will be considered
late, and your renewal fee will double to $250 ~ $300. We don’t want
you to have to pay the late fee, so please submit your online
application before December 31, 2012.
You will have the choice of
paying your renewal fee with a credit card through PayPal or by
submitting a check. You do not need to have or create a PayPal
account to use the PayPal function.
Note: If you are a volunteer neutral – that is, you receive
compensation, no matter how small, providing ADR services within or
outside a court program – you and your court-connection program
director can submit a sworn affidavit with your renewal application to
have your fee waived this renewal season.
be considered a volunteer, you must have provided ADR services to a
Georgia court program in the past year.
2012 volunteer affidavits are available under
“Forms and Applications.”
Continuing Education Requirements:
All renewing neutrals must submit 3 hours of continuing education that
they have taken in 2012. You cannot carry over CE hours from previous
years or toward future years.
and CJE qualify as neutral CE as long as they were earned and not
carried over. See the
“Help! I Need CE!” link for information on all the ways you can
earn CE credit.
Online Renewal Instructions:
Renewing online is fast and easy because most
of your personal information is already filled in online.
All registered neutrals have an online neutral account created
automatically for them. If you have never logged in to your online
must activate your account before using it the first time. Please
see how to activate your existing neutral account by going to
"Neutral Account Login Help" link. Then proceed as directed
To renew online, click on
“Login To Your Neutral Account” at the top of the web page. The
login page will appear in a new browser window. Enter your login ID
and password. Your login ID is the first four letters of your last
name and the last four digits of your SSN (i.e. smit1234). If your
old password does not seem to work, try “password” (without quotation
marks). If you have forgotten your personalized password, choose
the “Forgot Password” function on the main login screen. After you are
logged in, select “Renew Registration” in the menu. Follow the prompts
and instructions carefully. Once you fill out and submit your online
A summary of your online renewal form will be created in your
browser. Please print a copy for your records;
If you paid through PayPal, please print a receipt of your PayPal
renewal fee payment for your records.
Background Check Authorization:
If you’ve already submitted your “permanent” authorization form, you
don’t have to send us again. If you haven’t submitted your permanent
authorization, please download, sign and send us the
"Forms and Applications." Scan and e-mail, fax or mail us the
signed form. Your application will not be processed
without a signed authorization form. Mail, e-mail, or fax your signed
form to us.
Lawful Presence Affidavit and ID: The lawful presence
affidavit and supporting ID are required again this year.
even if you submitted them with your last application. The General
Assembly did not amend the Illegal Immigration Reform and Enforcement
Act of 2011 (O.C.G.A. § 50-36-1(e)), during the 2012 session. That
means that all renewing neutrals will once again have to submit
documentation that they are in the U.S. legally.
Therefore, as of January 1, 2012, before your registration can be
issued, renewed or reinstated you are required to:
1. Execute a signed and sworn affidavit verifying your lawful
presence in the United States. The affidavit to use for this
purpose can be found at the GODR website under “Forms and
Applications” or directly at this link:
2. Include with the
affidavit a copy of a secure and verifiable document issued to you by
a state or federal jurisdiction or recognized by the United States
government and that is verifiable by federal or state law enforcement,
intelligence, or homeland security agencies. A complete listing of
acceptable secure and verifiable documents, as determined by the
Office of the Attorney General, Georgia, can be found at the Attorney
General’s website under “Key Issues,” then “Immigration Reports,” or
directly at this link:
In addition to a professional credential issued by the Georgia
Supreme Court, your registration as a neutral entitles you to several
other exclusive benefits that can save you money, time and
aggravation. These include group-rate
professional liability insurance for neutrals; group
and individual health, vision, and dental insurance, retirement
products, and more. You will also continue to receive our new
monthly e-newsletter, which is designed to enhance your knowledge and
practice as a neutral. We are working to create more value-added
programs for neutrals, courts and trainers.
If you are mailing us important information, first make copies and
file them, then send the material via a service that provides tracking
and delivery confirmation. If you are faxing us important
information, keep the fax transmittal confirmation. If you are
e-mailing us important information, request a return receipt when your
message is delivered or read (many e-mail programs allow this) and
save it. Or save our responses to your e-mails.
For More Information:
Please contact us at
firstname.lastname@example.org or 404-463-3788 if you have further questions about
the renewal process.
2012 Renewal Season Key Dates
Submitted November 1-December 31, 2012: On-time renewal, fees $125
(non-domestic), $150 (domestic), 3 CE hours required.
Application Submitted January 1-April 30, 2013: Late renewal application
required, fees double to $250 (non-domestic), $300 (domestic),
neutral in “lapsed” status until renewed, can still handle
court-connected cases through April 30, 2013.
Application Received/Post-Marked May 1, 2013, and later:
Reinstatement application required, fees double to
$300 (domestic), 8 hours of CE required, neutral
in “inactive” status until reinstated,
cannot handle court-connected cases starting May
Alert: Renewing neutrals will have an opportunity to give us feedback
on the registration renewal process and on their contacts with our
office. Please look for the link to the online survey in the e-mail
confirming that your registration has been renewed. If you can spare
a moment, please take the survey and tell us your thoughts. Thank
**Always send important documents to GODR via a service that offers
tracking and delivery confirmation.**
Ethics Opinion 5 Published
The Commission’s latest ethics opinion,
Ethics Opinion 5, has just been posted on the GODR website under
“What’s New” and under
“Mediator Ethics Information.” Ethics opinions are based on
actual issues brought before the Commission’s Ethics Committee, and
they are posted to serve as educational opportunities for registered
CaseWatch for Mediators:
Clear and Complete Agreements Can Save Parties Years of Headaches
Courts hate repeat customers. Having parties come back to court to
argue over issues that should have been resolved on their first visit
is wasteful in time, money and resources for everyone involved.
That’s why mediators must be so careful to draft agreements with
completeness and clarity. In this month’s CaseWatch for Mediators,
Mary Ellen Cates, Esq., divorce attorney and registered mediator,
discussed a divorce case in which the settlement agreement’s
ambiguities created big hassles for the parties years after their
CaseWatch for Arbitrators:
$5 Million Award
Vacated Over Arbitrator’s Failure to Disclose Conflicts
It should be a no-brainer that neutrals should be, well, neutral.
Sometimes arbitrators forget that, and when they do, it can make a big
mess. In this CaseWatch for Arbitrators, John Allgood, Esq., veteran
attorney, registered mediator and arbitrator, discusses the latest
example of what happens when an arbitrator doesn’t tell the parties
about potential conflicts of interest he may have.
Do You Know Who You are Marketing to?
Spending big time and
money on marketing is just an expensive waste of time if you don’t
target your efforts efficiently. Do you know what your niche market
is? Do you really know to whom you should be marketing? Do you know
where your referrals come from? Do you know all the markets that you
should tap? In this month’s Marketing Tip, master marketer and
mediator Michele Gibson shows you how to design your marketing plan to
get a steady flow of business coming your way.
GODR MEMBER BENEFIT SPOTLIGHT –
As a Georgia Registered Neutral, you may qualify for discounts for
disability insurance. You may also be eligible for our member group
Long Term Disability insurance plan.
Our Member Group Disability program has been a popular program for
professionals since its launch in 1987. Over the years, the group plan
has experienced steady growth enabling us to make improvements to the
plan over time. We are happy to announce recent enhancements,
disability benefit amounts, up 10,000/month.
Benefits - add COLA and Critical Disability Supplement to your
available to all occupations.
This plan works great as primary coverage or in addition to other
coverage that you might have (income and benefit limitations still
apply). If you haven't reviewed your disability coverage needs in some
time, now is a good time to give us a call.
Get a quote for Disability insurance >
Social Security Administration, Fact Sheet March 18, 2011
Council for Disability Awareness (
If links in this email are not working, please visit
Products sold and serviced by BPC Financial, the administrator of the
Georgia Office of Dispute Resolution (GODR) Insurance Programs. GODR
is not a licensed insurance entity and does not sell insurance.
Available Resources for Georgia ADR Professionals
We encourage you to visit the
blog created by Georgia State University law professor Doug Yarn
and GSU law students Alex Salzillo and Alicia Mack to inform and
encourage discussion. Please add it to your reading list, send the
link to your colleagues, and visit often. The address:
don’t forget the
Georgia Mediators Network, a great Facebook resource for the
latest mediation news and articles from around the world. The page
has been visited tens of thousands of times in just the few short
months it’s been around. Use the information there to pump your own
professional web pages and your expertise. The Georgia Mediators
Network is the brainchild of registered mediator Michele Gibson, our
marketing columnist and newsletter producer.
Insurance Products for Registered Neutrals
Georgia-registered neutrals are entitled to participate in several
insurance and retirement programs that have been designed specifically
for them. If you need insurance, are planning for retirement, talk to
the experts at
BPC Financial. They manage our new exclusive insurance and
retirement program, and they can advise you on your insurance needs
and help you find good deals on major medical insurance, healthcare
savings accounts, dental and vision insurance, term life insurance and
more. Registered neutrals receive the benefits of underwriting
concessions, enhanced benefits, or reduced premiums and fees compared
to shopping for similar products on the open market. Check out the
GODR Registered Neutrals Insurance and Retirement Programs website.
We’ve also arranged for special benefits on professional liability
insurance for registered mediators and arbitrators with
Complete Equity Markets. See our
website for more information or contact
Betsy Thomas, 800-323-6234, ext. 472, and tell her you’re a
Georgia registered neutral!
Upcoming CE and
Renewal season is right around the corner, and everyone needs 3 hours
of CE to renew. Check 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 have 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. 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.
Back Issues Available Online
is sent monthly to all registered neutrals, generally at the beginning
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Spread the Word
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.
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