Dispute Resolution Section - State Bar of Georgia - Spring 2012 Newsletter, The Role of the "Appraiser" as Arbitrator, Special Master, or Other Neutral, Judicial Adjunct, or Trier of Fact

1. DR Currents
A Publication of the Dispute Resolution Section of the State Bar of Georgia Spring 2012
From the Chair
by Hal Gray
A
t the outset, please accept my thanks for your those additions were well-received by our membership. I
permitting me to serve as the chair of the Dispute sincerely hope that we can continue to make the Section of
Resolution Section for 2012. I hope to be able more tangible, practical value to its members.
to continue the excellent stewardship of past chairs John
We also welcome input from the various ADR
Sherrill and Ray Chadwick, and certainly have my work cut
providers in the state. The American Arbitration
out for me in that regard.
Association, JAMS and the various mediation services
Over the past few years, this section has begun reaching scattered throughout Georgia provide support to our
out to its members in several new ways. We’ve added a section members in many ways, and we invite their staff to bring to
webpage (www.gadisputeresolution.org) and we’ve added an our attention their thoughts as to how we may better serve
annual CLE Dispute Resolution Seminar in Augusta. With our members, both neutrals and advocates.
the addition of the latter, when combined with the annual
My deepest thanks to Adam Sutton who kindly
Arbitration Seminar in August and the ADR Institute and
permitted me to draft him into the position of editor of
Neutrals’ Retreat in December, we now co-sponsor (with
this newsletter.
ICLE) three separate Dispute Resolution CLE programs.
I look forward to serving this year as your Section
We hope to continue the tradition of reaching out to our
Chair. It is an honor to do so.
members by adding a CLE Seminar, possibly in Macon,
this year. As “alternative” dispute resolution becomes more My thanks and best regards.
widely accepted across the state, it doesn’t make much Hal Gray is the Managing Partner of Ragsdale, Beals, Seigler,
sense to me for our Section members to be required to Patterson & Gray, LLP. A graduate of the Emory University School
come to Atlanta to learn more about it. of Law, he has practiced construction law and commercial and
real estate litigation in Atlanta for over thirty years. He has been a
The Executive Committee and I are very interested in
member of the AAA Mediation and its various Arbitration Panels
your thoughts and suggestions for new seminar topics and for 25 years and regularly works as a mediator and arbitrator in
speakers. (The members of the Executive Committee and construction and commercial disputes. Hal currently serves as the
their email addresses are included in this newsletter.) Few Chair of the State Bar Dispute Resolution Section and the Boards
things are more boring than CLE seminars that feature the of Directors of the Construction Law and Dispute Resolution
same topics and the same speakers time-after-time. Last Sections of the Atlanta Bar. He is a Fellow of the College of
year we were able to add several new matters to both the Commercial Arbitrators and a member of the Georgia Arbitrators’
August and December programs, and it appeared as though Forum and the Georgia Academy of Mediators and Arbitrators.
Upcoming Events
“Practice Builder 2.0” at the State Bar of Georgia on April 10
The Inaugural Conference of the Atlanta International Arbitration Society, April 15-17

2. Federal Pro Dispute Resolution
Bono Residential Executive
Mortgage Committee
Mediation Program
By Halsey G. Knapp Jr.
Herbert H. Gray III, chair
Taylor Tapley Daly, vice chair
I
n conjunction with the Federal Bar Association,
Judge William Duffey has developed a pro bono
mediation program to help address the recent Joan Grafstein, secretary/
flood of cases in the United States District Court for
the Northern District of Georgia involving residential treasurer
mortgage foreclosures. By requiring borrowers to
provide updated financial disclosures and requiring
lenders to prequalify refinancing under existing At-Large
government programs, the mediation program is ideally
situated to facilitate a rapid and expedited resolution of Phil Armstrong
these cases and to provide a meaningful opportunity for
refinancing, where appropriate. Bobby Glenn
Halsey G. Knapp, Jr. of Foltz Martin, LLC is
organizing a group of pro bono volunteer mediators John Hinchey
who will provide this service to the federal court
system. While the first five hours of the mediation are Larry Christensen
free of charge, the mediator is entitled to assess fees
for his or her time spent as mediator thereafter. For John Sherrill, immediate past
more information on this public service opportunity
please contact Halsey Knapp at Foltz Martin, LLC at chair
hknapp@foltzmartin.com or (404)231-9397.
Thank you. Ray Chadwick
Halsey G. Knapp, Jr. specializes in Atlanta Business
Litigation and tries civil cases in state and federal courts in
Georgia and other states. His multifaceted practice includes
Adam Sutton, DR Currents
representing clients in complex commercial litigation,
business tort, trade secret, restrictive covenant, technology
Editor
litigation, and employment law.
Contents
From the Chair............................................................................................................................................. 1
Upcoming Events........................................................................................................................................ 1
Mediators Design Your Future!.................................................................................................................... 3
Will Atlanta be the Next International Arbitration Venue?............................................................................ 4
Pre-Divorce Mediation................................................................................................................................. 7
To a Man Who Has a Hammer, Everything Looks Like a Nail.................................................................... 8
2 DR Currents

3. Mediators Design Your Future!
By Bob Berlin & Carolyn L. Raines
A
re you one of those who left mediation training trying to be all things to all people. As marketing experts
truly wanting to be a mediator? Were you all fired opine, marketing to everyone is marketing to no one. Why
up about being able to help people in conflict? not become the specialist, the expert, that go-to-person,
Remember how strong and confident you felt about going everyone in your target market will seek out?
out to make peace in the world?
Conflict is everywhere. It’s the largest growth industry
Did you go visit all your lawyer friends to talk to them on the face of the planet. These are some simple steps that
about the value of mediation? Did you get a nice pat on the can get you started.
back and a ‘good for you’ just before heading for the exit?
1. What are you passionate about?
Did you run straight to the courthouse? And, did you find a
long line of mediators, much like yourself, trying to get in? 2. List all of your skills, i.e. coach, conflict resolver,
Maybe it’s time to re-think your strategy. negotiator.
3. Blend #1 and #2 above to bring your target market
So, how do you go about doing that? You’ll have to ask
into focus.
yourself some very personal questions and then think long
and honestly about the answers. So, grab a pen and paper 4. Ready. Aim. Fire!
and start jotting everything down. Bravo! Now you have just defined the first chapter in
First of all, understand that only 30 percent of all the new design of your life for the immediate future.
conflict resides in the courthouse or a lawyer’s office. The The authors of this article will be presenting their
rate of filings of actions at the courthouse is not enough to program “Practice Builder 2.0” at the State Bar of
warrant enough work for the newly trained mediators, let Georgia on Tuesday, April 10, 2012. If you’re interested
alone those who are already in line. in attending, please contact them by email: carolyn@
So what do you do? Where do you go? The vista of thenewdma.com or call (478) 477-3317.
possibilities is greater than you think. Open up to a broad As President of The New Decision Management Associates, Inc.
range of thinking in order to narrow your focus and thus Robert A. “Bob” Berlin has primary responsibility for Mediation,
expand your market. Finding a special niche that you are Negotiation and Arbitration services as well as lead trainer. He
passionate about serving will take some soul searching. Be has handled in excess of 4200 civil and family law mediations
careful. If you pick a niche you don’t love, chances are you since 1968. He is a graduate of the Walter F. George School of
Law, Mercer University, receiving the LLB (J.D.) in 1963. He
won’t see much success. If you’re going to work hard, the
was a senior partner in the law firm of Berlin and Hodges, P.C.
rewards will be greater if you feel passionate about it. for 39 years and served as a Municipal Court Judge for 25 years.
Someone told me many years ago that hard work only Berlin served in the Georgia House of Representatives. His is
makes you tired. Hard work with a plan or a goal, however, an approved Mediator for the USPS, EEOC and FBI. He serves
will get you there. So, consider marshalling all of the skills on the Advisory Committee of the Training & Credentialing
Committee of the Georgia Commission on Dispute Resolution.
you acquired in your lifetime. Think broader than the list of
credentials you’ve got. What are those skills that makes you As CEO of The New Decision Management Associates, Inc.
‘you’? Drill down and find all of those skills you possess. Carolyn L. Raines is responsible for the operations, management
Write them down. You’ll be amazed at how quickly your and co-trainer. A graduate of Middle Georgia College she
page fills up. You are a: Coach, Advisor, Facilitator, is a registered Mediator with the Georgia Office of Dispute
Negotiator, Listener, Designer, Economist… Wow! Did you Resolution and has mediated large group conflicts on a national
realize you were all those things and more? level. She comes to The New DMA from the non-profit
sector with expertise in corporate management, institutional
Now, think about who your target market is? Define performance assessment, fund development and behavior
them – how old are they, where do they live, what do they analysis. She currently serves on the Citizen’s Panel Review
do for a living, where do they hang out, what are their Board for the Bibb County Juvenile Court.
hobbies? What types of conflict might they be engaged in?
You may have to devote quite a bit of time in research to
identify your ideal target market.
You may want to consider thinking of it in terms of
the ‘Generalist vs. Specialist’. The generalist is one who is
Spring 2012 3

4. Will Atlanta be the Next International
Arbitration Venue?
By Glenn P. Hendrix
A
broad-based coalition comprised of the State Bar of continue to emerge. For instance, Singapore, Dubai and
Georgia (at the initiative of the Dispute Resolution Miami have become leading international arbitration fora in
Section), several dozen Georgia law firms, the the past decade, and the island nation of Mauritius is vying to
major U.S.-based arbitration institutions, southeastern become a center for Africa-related arbitrations.
law schools, in-house counsel, and the Georgia and Metro
Why Georgia?
Atlanta Chambers of Commerce seeks to promote Atlanta
as a seat of international commercial arbitration. What can Georgia offer compared to these other
venues? Surveys of corporate counsel indicate that the most
International arbitration is not an exotic pastime. It
important factor in picking an arbitral venue is the legal
is the leading method for resolving cross-border business
infrastructure, including the jurisdiction’s arbitration law
disputes, in part because companies naturally fear litigating
and track record in upholding agreements to arbitrate and
in a foreign court. Arbitration allows the parties to resolve
arbitral awards.
their dispute in a neutral forum. An international treaty
also makes it easier to enforce an arbitration award across Georgia showcases well in that regard. The 11th Circuit
borders than a court judgment. While the United States has U.S. Court of Appeals is the most international arbitration-
no treaties with any other country for the enforcement of friendly court in the U.S. and among the most arbitration-
our court judgments, over 140 countries, including the U.S., friendly courts in the world. For instance, the 11th Circuit
are parties to the U.N. Convention on the Recognition and is one of only few Circuits that preclude challenges to
Enforcement of Foreign Arbitral Awards. arbitration awards on the basis of “manifest disregard for
the law.” This eliminates a concern expressed by some non-
Most international arbitrations take place in just a handful
U.S. lawyers about conducting international arbitrations in
of cities. London, New York, Geneva, Paris, Hong Kong and
the U.S.s. The 11th Circuit has also taken the national lead
Stockholm are among the traditional leaders, but new centers
4 DR Currents

5. in upholding sanctions against parties making frivolous transactions and disputes. The city also has a cosmopolitan
challenges to arbitration agreements and awards. global brand, thanks in part to the ’96 Olympics, the Carter
Center, CNN and the Martin Luther King and Andrew
Subject to some very minor restrictions, Georgia allows
Young legacies. 76 countries are represented in Atlanta by a
parties to select counsel of their choice in international
consulate, trade office or bi-national chamber of commerce.
arbitration proceedings, including attorneys not licensed in
Atlanta is also less expensive than other major arbitral venues.
any U.S. jurisdiction. This is critical to parties selecting an
arbitral venue. If the parties’ dispute is governed by, say, Finally, a common element in the rise of all successful
German law, they will want German lawyers involved in arbitral venues is an active collective effort by the local
the case. legal community to brand and market the city as an
international arbitral seat. This plays to one of Georgia’s
Georgia also has an international arbitration-friendly
strengths, as we have a strong tradition of marshaling
state statute. The law was first enacted in 1988 and
business, civic and political coalitions in effectively selling
substantially amended in the 2012 legislative session by
ourselves to the rest of the world. This is reflected in the
SB 383, which was drafted by a team led by Prof. Doug
board of directors of the recently established Atlanta
Yarn. SB 383 de-links the international and domestic
International Arbitration Society (AtlAS), which includes
chapters of the Georgia Arbitration Code and largely
the following individuals:
tracks a model law prepared by the United Nations
Commission on International Trade Law (UNCITRAL). Philip “Whit” Engle, Ecova, Inc. (Executive Vice-
The State Bar’s Dispute Resolution Section Chair, Hal President); Brian White, King & Spalding (Vice
Gray, provided effective testimony on behalf of the bill in President); Steve Clay, Kilpatrick Townsend &
the General Assembly. Stockton (Vice President); Valerie Sanders, Sutherland
Asbill & Brennan (Treasurer), Joan Grafstein, JAMS
Moreover, Atlanta is one of the easiest cities in the
(Secretary), Tom Asselin, Smith Gambrell & Russell;
world to access. In Hartsfield-Jackson, we have the busiest
Dorothy Beasley, Henning Mediation & Arbitration;
passenger airport in the world. No other city in the world
Linda Beyea, American Arbitration Association;
can make that claim. The airport serves non-stop flights
Alan Blackburn, Balch & Bingham;William F.
to 151 U.S. destinations and more than 90 international
Brogdon; Charles “Chip” Brower, University of
destinations in 55 countries.
Mississippi; Jorge Fernandez, Metro Atlanta Chamber
Atlanta is also a major corporate headquarters city of Commerce; John Fleming, Sutherland Asbill &
and a primary legal market served by a sophisticated legal Brennan; Shelby Grubbs, Miller & Martin; Hunter
community accustomed to handling the most complex Hughes, Rogers & Hardin; Matt Richardson, Alston
& Bird; Peter “Bo” Rutledge, UGA; Christof Siefarth,
GÖRG; Richard Sheinis, Hall Booth Smith & Slover;
John Sherrill, Seyfarth Shaw; Tony Smith, Weinberg,
Wheeler, Hudgins, Gunn & Dial; Chris Soffe, Gleeds;
John Watkins, Barnes & Thornburg; Kirk Watkins,
Womble Carlyle Sandridge & Rice; Doug Yarn, GSU;
and Frank Young, Haskell Slaughter.
What is the Plan to Realize Georgia’s Full
Potential as an Arbitral Center?
Several steps are being taken to ensure the success of
this initiative:
Clarifying the Bar Rule with regard to foreign lawyers
handling international arbitrations in Georgia. This
involves some tweaks to the commentary to Georgia
Bar 5.5(e)(3). The State Bar’s Board of Governors has
already approved the revisions, which now await the
approval of the Georgia Supreme Court. Ben Greer of
Alston & Bird (ret.), Bill Smith of the State Bar, and
Bryan Cavan of Miller & Martin have been key players
in moving this forward.
Getting the word out. AtlAS has developed a website
(www.arbitrateatlanta.org) and brochures in a number of
Spring 2012 5

6. languages extolling the city’s virtues as an arbitral venue, ALI’s Restatement project on the U.S. Law of International
as well as an extensive mailing list, and is developing Commercial Arbitration; and leading practitioners, neutrals
an outreach program to in-house counsel around the and in-house counsel from Georgia and well beyond. As
world. AtlAS seeks to promote an Atlanta arbitral seat this article goes to print, eighteen countries are represented
to companies throughout the Southeast. A company among the registrants.
headquartered in, say, Memphis, Charlotte or Nashville
The event offers an opportunity to learn more about
might be able to persuade the party on the other side of the
the initiative and recent developments in international
deal that Atlanta is a sufficiently “neutral” site to resolve
arbitration and to network with local and international
future disputes.
leaders in the field. You can register online through the
Presenting an annual signature conference on AtlAS website -- http://arbitrateatlanta.org/events.
international arbitration. Hosting conferences to attract
the international arbitration community to their cities
What’s in this for Georgia Lawyers?
has been a key factor in the recent emergence of Miami Increasing the number of international arbitration
and Singapore as major arbitral centers. Likewise, AtlAS proceedings with a Georgia venue would expand the work
has organized a world-class international arbitration available for Georgia lawyers, even if non-Georgia lawyers
conference to take place on April 15-17, 2012 in the Loews also benefit. For instance, over 80% of all arbitrations
Atlanta Hotel, with a reception and dinner at the High administered by the LCIA have no connection to England.
Museum. The title is “The Role of the United States in That creates a lot of work for English lawyers. In a recent
the International Arbitration System of the 21st Century: speech to Parliament, the Chancellor of the Exchequer
Trendsetter, Outlier or One in a Crowd?” Brian White and described international arbitration as one of the “unsung
Valerie Sanders are the conference co-chairs. success stories” of the U.K. economy.
An all-star cast of speakers from five continents Conclusion
will include Chief Justice Carol Hunstein of the Georgia
AtlAS is aiming for a much larger share of the
Supreme Court, Mayor Kasim Reed, the presidents of
burgeoning field of international arbitration for Georgia
the AAA, Chartered Institute of Arbitrators and London
lawyers. Its monthly meetings rotate between law firms
Court of International Arbitration (LCIA); the secretaries-
and local arbitral institutions. The schedule appears on the
general of the China International Economic and Trade
AtlAS website. Anyone is welcome to attend, regardless of
Arbitration Commission (CIETAC) and International
membership in the AtlAS organization. We hope to see you at
Centre for Settlement of Investment Disputes (ICSID); the
an upcoming meeting and at the conference on April 15-17!
chairs of the International Chamber of Commerce (ICC)
Court of International Arbitration and the international Glenn P. Hendrix is the managing partner of Arnall Golden
arbitration committees of the International Bar Association Gregory LLP and the president of the Atlanta International
and American Bar Association; all four reporters for the Arbitration Society. He can be reached at glenn.hendrix@agg.com.
The State Bar has three offices to serve you.
HEADQUARTERS SOUTH GEORGIA COASTAL GEORGIA OFFICE
104 Marietta St. NW OFFICE 18 E. Bay St.
Suite 100 244 E. 2nd St. Savannah, GA 31401-1225
Atlanta, GA 30303 Tifton, GA 31794 912-239-9910
404-527-8700 229-387-0446 877-239-9910,
800-334-6865 800-330-0446 Fax 912-239-9970
Fax 404-527-8717 Fax 229-382-7435
6 DR Currents

7. Pre-Divorce Mediation
By Adam M Sutton
W
hile discussing the trials and tribulations of Pre-Divorce Mediation is an attempt to eliminate the
managing a small law office, an experienced time, energy, and money spent litigating when the parties
litigator and long-time member of the State Bar need to be mediating. In Pre-Divorce Mediation, the
once said that even in a down economy people still commit spouses meet with a mediator before anything is filed with
crimes and people still get divorced. The implication was the court. Some people may prefer to have attorneys with
that criminal defense attorneys and family law attorneys them at the mediation but others may not. The Pre-Divorce
survive a struggling economy better than most. That Mediation session is similar to typical mediation sessions.
statement generally rings true. However, while the number The mediator works to help the parties resolve their
of divorcing spouses may be as high as ever, the manner disputes by facilitating communication, clarifying interest,
which clients approach divorce is changing. Spouses who and generally assisting in negotiation. If the spouses reach a
are unemployed, behind on their mortgage, and struggling settlement, the mediator drafts an agreement which is then
with day-to-day expenses are not willing or able to give an signed by both parties. They can then take this agreement to
attorney a lump sum retainer in the thousands of dollars. an attorney who will draft their legal paperwork and file the
They also resist committing to an divorce uncontested.
attorney’s per hour rate when they
There are some things to keep
have no idea how much the fees
in mind if you are considering
will be by the end of their case.
recommending Pre-Divorce
Spouses are shopping for low costs
Mediation. Because mediation
and fast results more than ever.
occurs before discovery, it may not
Naturally, these people be appropriate for spouses who
gravitate towards the idea of have very complicated financial
an uncontested divorce. In an issues or where there is a concern
uncontested divorce, a spouse that one spouse is not willing to
hires an attorney to draft and file fully disclose his or her assets.
all necessary paperwork and to Even when financial issues are
facilitate the divorce process. relatively simple, it is important
In most cases only one attorney is involve but the non- that each have access to necessary financial documents and
represented side may retain counsel to review the proposed be knowledgeable enough to effectively negotiate. Finally,
settlement agreement if he or she so wishes. Most attorneys while a trained and experienced mediator can provide a lot of
who accept uncontested divorces only charge a single low negotiating assistance even when people adamantly disagree,
flat fee. To utilize the uncontested divorce process the it is important that both parties are willing to at least attempt
parties must agree on all issues from the very beginning. to negotiate in good faith.
If the parties disagree, no matter how big or small the
For many people, utilizing mediation at the beginning
disagreement may be, they are out of luck. They are left
of the divorce process gives them the ability to turn
with the traditional combative approach to divorce where
what could have been a long and expensive process into
they each must retain their own attorney, pay thousands of
a comparatively short and cost efficient experience.
dollars in fees, and fight in court.
It bridges the gap between people who cannot afford
Pre-Divorce Mediation may be a viable alternative lengthy litigation and the benefits and cost savings of an
for these people. Mediation is certainly not a new concept uncontested process.
in the realm of divorce. Most divorcing parties attend Adam M Sutton is the founder and president of The Sutton Law
mediation. Many judges even require mediation. However, Office LLC in Kennesaw, Georgia and the new Editor of DR
most divorcing parties do not attempt mediation until Currents. A graduate of Atlanta’s John Marshall Law School,
after they begin the traditional divorce process. Typically he is a family law attorney, criminal defense attorney, guardian
each spouse retains attorneys who file answers and ad litem, and mediator who practices throughout Metro-Atlanta.
motion, request and fight over discovery, and argue over He is a volunteer attorney for Cobb County Legal Aid, works
the contentious issues. While some jurisdictions mandate with inner-city youths with the Atlanta Teen Court program, and
mediation early in the process, most courts do not mandate assists in the training of new mediators. He can be reached at
mediation until after the first temporary hearing. adam@thesuttonlawoffice.com
Spring 2012 7

8. To a Man Who Has a Hammer, Everything
Looks Like a Nail
The Role(s) of the “Appraiser” in Dispute Resolution and Alternative Dispute Resolution as
Finder of Fact, Neutral, or Judicial Adjunct
By Jon M. Ripans
T
his article was prompted by a debate over the role of value of the real property”;
appraisers serving as property tax County Hearing
• USPAP defines “appraisal” simply as “an opinion
Officers under a new Georgia statute. As appraisers
of value;”2 and
are wont to do, there were strong opinions regarding two
issues: • Georgia law defines “appraisal” as “an analysis,
opinion, or conclusion prepared by an appraiser
1. whether the role of County Hearing Officers
relating to the nature, quality, value, or utility of
presiding over property tax appeals under Official
specified interests in, or aspects of, identified real
Code of Georgia Annotated [“O.C.G.A”] Section
estate”3and further provides that “[a]n appraisal
48-5-311(e.1) is that of an appraiser, appraisal
may be classified by subject matter into either a
practice or some other form of valuation service as
valuation or an analysis.”4
opposed to something completely different; and
It cannot be ruled out that some of these appraiser
2. whether the Uniform Standards of Professional
colleagues may also believe that the Georgia property tax
Appraisal Practice [“USPAP”] apply.
arbitration statute5 is also calling for an appraisal, despite
This article is but one person’s opinion on a rather the fact that its default provision is for the arbitrator to
contentious matter. It’s a tough topic on which many people choose between a value submitted by the taxpayer and one
seem to disagree –passionately. Take it with a grain of submitted by the taxing authority based upon the evidence
salt. And use it at your own risk, whether you are an presented.
appraiser, advocate or party.
The question becomes: what is the role of the holder
Here are the specifics of the Georgia situation, but the of an appraisal classification as neutral when a statute calls
general scenario is analogous to many
other fact-finding or neutral roles that may
call upon a person holding an appraisal
classification. The Georgia property tax
County Hearing Officer statute1calls
for the Hearing Officer to be a Certified
General Real Property Appraiser or
Certified Residential Real Property
Appraiser.
To many of my appraiser colleagues,
those requirements make it sound like
an appraisal is the function of Certified
General Real Property Appraiser or
Certified Residential Real Property
Appraiser serving as a property a County
Hearing Officer because:
• the statute requires that the
County Hearing Officer hold
certain appraisal classifications
under Georgia law;
• the County Hearing Officer’s role
is to “determine the fair market
8 DR Currents

9. for that trier of fact to hold an appraisal
classification? There is surprisingly
little published on the topic of appraisal
classification holders serving as triers of
fact, but I conclude that the role is almost
always something other than that of
“appraiser.”
One particular Georgia Court of
Appeals decision tends to support this
conclusion. See Skinner v. Smith, 120
Ga. App. 35, 169 S.E.2d 365, 367 (1969)
(explaining that the fact that a contract
referred to a third-party decision maker
as an appraiser and not arbitrator was
immaterial where that third party was
selected to make determination of fact
to bring an end to litigation).See also,
Stephens v. Trust for Public Land, 475
F.Supp.2d 1299, 1316-17 (N.D. Ga, 2007).
The crux of the problem is that real
estate appraisers and other valuation
professionals and the rules that govern their
profession, such as USPAP, function along by law or regulation,” 2) “by agreement with the client
the lines of the Civil Law inquisitorial system of justice, in or intended users,” or 3) when the appraiser or other
which judges take on the responsibility of investigating the professional chooses to comply (which could be triggered
facts of a matter. But, our legal system, including most, but by membership in various professional organizations that
not all, administrative proceedings,6function as a Common have different codes of conduct.).
Law adversarial system.
When a statute indicates/requires that the neutral hold
Appraisers and other valuation professionals are a real property appraisal classification, or the parties select
subject to USPAP in a wide variety of contexts, and so or a court appoints a person known to hold a real property
USPAP tends to be the default, “go to” authority for most appraisal classification, incorrect expectations can result.
real property appraisers. But, USPAP itself maps out some These expectations could even rise to the level of a due
limitations on its applicability, and some experts, like The process issue, grounds for vacating an award, or maybe
Appraisal Institute’s Stephanie Coleman, MAI, note that even a malpractice concern for the advocates and the
there is a distinction between USPAP applicability and appraisal classification holding neutral. Unless the holder
USPAP enforceability.7USPAP enforceability is a separate of an appraisal classification is being hired as a neutral for
issue. It does not even become relevant unless USPAP the express purpose of performing an appraisal (either as
applies. As for applicability, as opposed to enforceability, an appraiser or maybe a “special master”), the neutral is
the Preamble to USPAP itself sends up a huge red flag: probably not serving as an appraiser, but as a passive trier
USPAP does not establish who or which assignments of fact who happens to be conversant in the subject matter.9
must comply. Neither The Appraisal Foundation nor its As a passive trier of fact, the “appraiser” who serves as
Appraisal Standards Board is a government entity with a neutral does not perform the full range of steps that are
the power to make, judge, or enforce law. Compliance usually taken in an appraisal assignment, starting with
with USPAP is required when either the service or the the information gathering that normally accompanies an
appraiser is obligated to comply by law or regulation, or appraisal assignment: inspecting the subject, gathering and
by agreement with the client or intended users. When not vetting comparables, gathering market data, etc. Indeed, such
obligated, individuals may still choose to comply.8 activities could even constitute “undue means.” Instead, the
parties bring the law and the facts and the “appraiser” who
So, before one even considers USPAP’s Jurisdictional serves as trier of fact merely analyzes that information and
Exception Rule or USPAP Advisory Opinion No. 21, the settles upon the most correct (or least erroneous) value.
first step in the analysis under USPAP is to determine
whether it even applies. USPAP clearly applies 1) “when Depending upon the jurisdiction, there may be a
either the service or the appraiser is obligated to comply pretty easy solution for appraisers and other valuation
Spring 2012 9

10. professionals who are serving as a neutral or mere passive
trier of fact, regardless of its nomenclature:10The appraiser
or other valuation professional serving as a trier of fact
can make it clear in arbitration submissions, agreements to
mediate, and similar documents, which services are and are
not being provided and which professional and ethical rules
are being applied.
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.
Jon M. Ripans, Esq. is a Certified General Real Property
Appraiser, Member of the State Bar of Georgia, Registered
Neutral (Arbitration and General Mediation) with the Georgia
Office of Dispute Resolution, Secretary to the Property Tax
Subcommittee of the Real Property Law Section of the State Bar
of Georgia, and a Georgia property tax arbitrator and Georgia
property tax County Hearing Officer. Jon also serves as a
commercial real estate appraiser and expert witness, and also as
a property tax advocate under various fee arrangements. He has
given presentations to the American Bar Association, Institute for
Professionals in Taxation, the Georgia Department of Revenue,
and at Georgia State University School of Law.
(Endnotes)
1 O.C.G.A. Section 48-5-311(e.1).
2 Uniform Standards of Professional Appraisal Practice, Definitions,
p. U-1 (Appraisal Standards Board of the Appraisal Foundation
2010-2011).
3 O.C.G.A. § 43-39A-2(2). Georgia law further provides: “Analysis”
means a study of real estate or real property other than one
estimating value. O.C.G.A. § 43-39A-2(1). “’Valuation’ means an
estimate of the value of real estate or real property.” O.C.G.A. § 43-
39A-2(20).
4 Id.
5 O.C.G.A. Section 48-5-311(f).
6 Non-adversarial administrative proceedings in the United States can
involve an inquisitorial role. See, e.g., In re Beck, 526 F.Supp.2d
1291 (S.D. Fla., 2007) (citing Richardson v. Perales, 402 U.S. 389,
409-10, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
7 My mentioning Stephanie Coleman, MAI, is not to imply in any
way that she was given the opportunity even to review this article,
let alone endorses any ideas presented.
8 USPAP Definitions, p. U-6, Lines 158 through 161.
9 “Arbitration discourages litigation, permits parties to resolve their
disputes in a specialized forum more likely to be conversant with
the needs of the parties and the customs and usages of a specific
industry than a court of general legal or equitable jurisdiction, and
provides for speedy resolution of disputes in order that work may
be completed without delay.” New Hampshire Ins. Co. v. State
Farm Ins. Co., 643 A.2d 328, 330-31 (Del. Super. 1993) (citation
omitted). [The less polite description would be Spencer and Twain
on juries].
10 Some possible labels include arbitrator, hearing officer, assessor,
judicial adjunct, special master, expert advisor, auditor, etc.
Mediators, technically, are not triers of fact.
10 DR Currents