Vol. 10

January 2006

In this issue:

Georgia Tort Reform Update

Henning Neutral Profile
One Busy Lady

News from the Courthouse — Mediation/Arbitration Updates
Arbitration of Employment Claims Upheld

Henning and Our Neutrals in the News

Georgia Tort Reform Update

HB574 specifically addresses some of the ambiguities of the offer of judgment section of the legislation. Lindsey expects the bill to be amended to address specific issues raised by the courts. One of those issues was whether the judge or the jury would decide whether an offer of judgment was made in good faith. Based on the court activity, Lindsey expects the law will be clarified to identify the judge as making the determination.

The bill also addresses what was a major source of concern in the old legislation - the tripwire for an offer of judgment if the plaintiff fails to agree to a defense offer. In the proposed bill, for instance, if the plaintiff declines an offer of $100,000 and does not receive $75,000 by the court, then the plaintiff would pay defendant’s attorney fees from the date of the offer through the course of the trial. One element of the proposed revision clarifies that this provision would apply to both plaintiffs and defendants.

Another bill, HB573, which Lindsey sponsors, deals with the vanishing venue issue. Under the current law, if a case has multiple co-defendants, once a co-defendant has settled or the case has been tried unsuccessfully against the resident defendant, the non-resident defendant can move to another venue and cause the case to be re-tried. This was seen as an undue cost burden, particularly for plaintiffs. Under Lindsey’s proposals, multiple co-defendants can agree to the applicable venue in which they wish the case tried. Once agreed, then they have to stay in that venue. This removes the vanishing venue concern and addresses the concern by defendants of plaintiffs venue shopping.

The ambiguities of the current law were expected to increase the number of cases that went to mediation as defendants and plaintiffs alike were unclear about trial outcomes.

According to Lindsey, the legislation hasn’t been effectively used by either side in court as both sides were wary. As a result more cases have gone to mediation.

Henning Neutral Profile - Hon. Dorothy Beasley

One of her most recent activities with the International Connection Program was helping to organize support from the International Law Section of the State Bar of Georgia, the Atlanta Bar Foundation, the Possible Woman Foundation, Delta Airlines, and lawyers in the Atlanta legal community to fund two law students from the Republic of Georgia. The students, who had just completed their law studies, took a semester of classes at GSU while observing mediations (at Henning with Terrence Croft), court sessions, deposition-taking, and law firm activity, as well as participating in bar and community events such as helping build a Habitat for Humanity house. Gigi Liluashvili and Tamar Charbadze were housed by members of the Atlanta legal community. The Program, directed by Professor Charles Marvin, had previously sponsored students from Bulgaria and Croatia.

Beasley landed in Atlanta after obtaining her law degree from American University in Washington, D.C. She shared a house with a group of women in Georgetown and while attending one of their weddings in Atlanta she met her future husband. She later obtained her L.L.M. in Judicial Process from the University of Virginia School of Law and has had a distinguished career on the bench.

Although she has no children of her own, now-single Beasley has an unusual extended family which includes her two sisters’ six children and a young lawyer from Albania, Vjollca Prroni, and her 10-year-old son, Victor. Prroni, who was serving as the legal assistant to the Chief Justice of Albania when she met Beasley, now works at a law firm in Atlanta. In addition, Beasley’s 93-year-old mother, Beatrice Toth, lives with her.

It’s obvious talking to Beasley of her interest in furthering legal initiatives overseas. Her international interest began at St. Lawrence University where she considered a career in the Foreign Service after receiving her B.A. She wistfully talks of doing more travel abroad. For now, however, her life is full with mediating a large federal class action case involving foster children, caring for her mother, and her local international activities. She’s also found time to help build Habitat for Humanity houses and participate in the International Club of Atlanta. She’s a co-founder of Atlanta’s Table, a project the Atlanta Community Food Bank.

When asked where she grew up, Beasley answers quickly, “I haven’t yet.” Her active life belies her quip. She’s a very busy lady.

For more information on the Hon. Dorothy Beasley, go to www.henningmediation.com.

Table of Contents

News From the Courthouse

The practice of requiring employees to arbitrate employment disputes has been growing nationwide.  Even though the U.S. Supreme Court has previously held that mandatory arbitration of employment disputes is permissible (Circuit City Stores, Inc. v. Adams, 523 U.S. 105 (2001), arbitration agreements continue to be challenged in the courts.  Two recent decisions by the Fourth and Seventh Circuit Court of Appeals rejected claims challenging employment arbitration agreements.  In Perdue v RBC Mortgage Co., No. 05-2926, WL 3046248 (7th Cir. 2005), Perdue sued her employer, RBC, claiming racial discrimination.  RBC had the lawsuit stayed and commenced arbitration proceedings.  Perdue refused to participate in the arbitration and the arbitrator dismissed her claims.  On appeal she argued that the arbitration clause was unenforceable because it prevented her from vindicating her Title VII rights and she had no choice in signing the arbitration agreement.  The Court upheld the dismissal of her claims noting that unequal bargaining power or a “take-it-or-leave-it” deal does not invalidate an arbitration agreement.

In another case in which an employee challenged an employment arbitration agreement, the Court held that the fact that an arbitration agreement requires parties to relinquish rights to state judicial forums and to trial by jury does not make such an agreement unenforceable.  See American General Life & Accident Insurance Co. v. Wood, No. 04-2252, 2005 WL 3031113 (4th Cir. 2005).  Wood filed a claim in state court alleging sex discrimination and wage law violations.  Her employer filed a motion to compel arbitration, which was granted.  On appeal Wood argued that the arbitration agreement was an unenforceable adhesion contract that abrogated her state constitutional rights to state judicial forums and a trial by jury.  The Court held that by agreeing to arbitrate a claim, a party does not forego the substantive rights afforded by a statute, it only submits their resolution to an arbitral, rather than judicial forum.  The Court also said that the Federal Arbitration Act and the Supremacy Clause of the Constitution preempted any state-created rights that frustrate arbitration. 

Table of Contents

Henning and Our Neutrals in the News

•   As member of the ABA Central Europe and Eurasian Law Initiative (CEELI) Advisory Board, Henning neutral, the Hon. Dorothy Beasley, attended the ABA International Rule of Law Symposium in Washington in November. Judges, lawyers, government officials and others from 40 countries heard a star-studded collection of speakers that included Sec. Condoleeza Rice, Sen. Hillary Clinton, three Supreme Court Justices and the General Counsel for the World Bank, among others. The program addressed Rule of Law issues around the globe and challenges to its establishment.       

•   Terrence Lee Croft will speak twice on Alternate Dispute Resolution at a Fundamentals of Law Practice seminar sponsored by ICLE in January.

•   We’re pleased to announce that Henning neutral Dennis Caniglia recently underwent a successful liver transplant. He has reported that he "feels great" and anticipates being able to return to handling mediations in January. Dennis described his transplant as "an early Christmas present."

•   Pat Siuta provided Advanced Mediation training to 60 employees of the Tennessee Department of Labor in November.  She also provided Mediation Training to lawyers in Nashville and Memphis, Tennessee in December.

•   Bill Goodman will be speaking at the Atlanta Dispute Resolution Lawyers breakfast on Friday, Jan 20, 7:30am at the Colonade Restaurant. Topic: "Some Reflections on Brackets and the Mediator's Number." ADRL is a section of the Atlanta Bar Association.

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