Vol. 6
May 2005


 








In this issue:

Asbestos Legislation Insights

Henning Neutral Profile
R-E-S-P-E-C-T

Interesting People Trained by Henning
New Television Series Featuring Henning Graduate

News from the Courthouse — Mediation/Arbitration Updates
Class Action Waiver Upheld in Arbitration Agreement

ADR Tips

Henning and Our Neutrals in the News








Upcoming ADR Training Courses

Atlanta, GA
Arbitration
     May 10; Jun. 27
Civil Mediation
     May 5-6 & 12-13;
     Jun. 22-25
Employment Mediation
     May 18-19; Jun. 20-21
Mastering Mediation Advocacy
     May 11; Jun. 13
Mediation Observation
     Jun. 28-29
Overcoming Impasse
     May 4

For more information, go to www.henningmediation.com




 
Asbestos Legislation Insights
 

Asbestos class action suits have bankrupted companies and cloud the future of other companies with unknown liabilities. This fact must be weighed against the very real needs of victims of asbestos contamination. Legislation in front of the U.S. Congress proposes setting up a national compensation fund for asbestos victims. Henning asked a number of attorneys to comment on the proposed legislation.




According to Joseph Rice, a well known trial attorney, there are a number of issues surrounding the legislation.

“The principal problems are: the bill says there shall be a trust fund of $140 billion, it shall be funded and it shall be operable in six to nine months but there is no meat behind the dictates. There are many issues to be worked out such as who pays that money, how much is paid and where the money will come from. Some Republicans are concerned this is a stripping away of states’ rights and invasion of the contractual rights of individuals. Hundreds of people have agreements with companies that call for compensation payment over time. The bill appears to void these agreements,” states Rice.  

“Trustees of trust funds established from the bankruptcy of companies such as Manville and Celotex feel the bill takes the funds from those trusts. Lastly, if the national fund runs out of money, the victims can still go back into the court system. So the bill really doesn’t close the issue yet it takes all the insurance assets away from the companies, or it implies that it does,” says Rice. “There’s too much open-ended about the bill. It is an overly complex attempt that hasn’t been thought through, to create a national fund.

“I believe there are things that could be done to provide corporations with a predictable flow of compensation, which is their real need,” concludes Rice.

Hon. Jack Etheridge, a special master in construction-related class action suits and a Henning neutral, states, “I worry that when we get national legislation, it will limit the options and access to the courts of poor and average people. Most asbestos victims are disadvantaged people. I feel the bill enhances the defendants’ position. Defendants want these cases in federal court where there is a more restrictive view of rights.

“In order to show that one has suffered damage by reason of asbestos, a victim has to show causation - when, where, how, as well as medical proof of the damage and the connection to asbestos. All of these elements would become subject to federal rules of evidence under the legislation. The difficulty with asbestos cases is that cases of asbestos contamination from 30 years ago are only now being diagnosed,” says Etheridge.

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Henning Neutral Profile: Arthur H. Glaser
 

R-E-S-P-E-C-T

Respect is a word one hears often with regard to Henning neutral Art Glaser. Unlike Rodney Dangerfield, Art gets more than his fair share of respect. Handling many of the most complex cases that come to Henning, Art’s approach to mediation is that it is a problem to be solved, as opposed to a way to show off litigation skills.




“I became a neutral because most trial lawyers fall into the category of warriors or peacemakers,” says Glaser. “I've always been more of a peacemaker, so it was a natural evolution to becoming a mediator.”

Glaser became a mediator following a successful practice, primarily as a defense attorney. When one of his biggest clients, an insurance company, went bankrupt, he had some time to fill and began thinking about mediation.

“I love it. I get to spend my days with people I like and respect and get to help resolve their cases. There’s not a much better way to spend your day,” he adds.

Glaser could have easily taken a side road in his career path when he became involved in real estate. Not only did he buy, develop and operate three office buildings housing law firms, but he and a partner also built a number of spec homes for a few years.

“I found out it is a lot easier to build them than to sell them,” he laughs. However, he admits the experience helped him when he built his personal home in 1994 and when he mediates construction defect cases. “I’ve found it very helpful as a mediator to be able to read plans and understand construction sequencing,” he says.

In fact, Glaser feels one of the things that differentiates him from some mediators is his mathematical approach to settlements. He has developed a litigation risk analysis matrix which helps each party find the parameters of the settlement he calls “mutually uncomfortable”, the “sweet spot" of a mediation. This model helps educate people, particularly plaintiffs, as to what can and cannot be achieved.

Glaser’s family includes daughter Kimberly, 30, a high school English teacher, and Kevin, 26, an investment banker and passionate golfer. Son Dan was lost in an accident two years ago.

His wife is “the best-looking Wayne you’ll ever see,” according to Glaser. They have had lots of amusing situations as a result of her unusual first name, Wayne.

For fun, Glaser says he concentrates on the three G’s: gardening, golf, and his grandson, 2-year-old Patrick

Originally from Harrisburg, Virginia, Glaser came to Atlanta after completing a B.S. at Hampden–Sydney College and his J.D. from the University of Virginia in 1973. “I thought I’d go back to Virginia but I never did. Atlanta has just been a very exciting place to be the last 30 years,” he says.

The colleagues, who offer him the kind of respect Rodney Dangerfield could never know, are glad he stayed.

For more information on Art Glaser, go to www.henningmediation.com

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Interesting People Trained by Henning
 

New television series features Henning graduate

Through the doors of our classrooms have walked some interesting people. Aileen Page is someone you may not have heard of, but you will shortly. Page has been chosen as a contestant on the upcoming alternative drama series featuring real lawyers on NBC. The series The Law Firm will feature real lawyers competing against each other while trying real court cases with judges and juries, resulting in outcomes that will be binding. Its producers include David E. Kelley (The Practice, Ali McBeal, L.A. Law). Celebrated trial attorney Roy Black of Black, Srebnick, Kornspan & Stumpf, P.A. will decide which of the twelve attorneys will be eliminated each week. The top attorney will receive a prize of $250,000.00. The eight-episode program will air this summer.




Page was selected from thousands of candidates to participate in the television show. She recently opened her own law practice, The Law Firm of Aileen Page, P.C., following four years in criminal law as an assistant district attorney and four years as a defense and plaintiff civil litigation attorney.

She has completed the Civil Mediation course offered by Henning. “It was an excellent program, very comprehensive,” says Page. “It was a good balance of theoretical and practical, lectures and role-playing. I would definitely recommend it.”

For more informationon training programs offered by Henning, go to www.henningmediation.com

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ADR Update
 


Class Action Waiver Upheld in Arbitration Agreement


Many companies have added arbitration clauses to their contracts so that disputes can be resolved more quickly and less expensively than is possible with litigation. Some companies have concluded that one way to further reduce the cost is to preclude class actions in arbitration. In a recent decision the 11th Circuit Court of Appeals held that, in Georgia, an arbitration agreement that precludes class actions is enforceable. See Jenkins v. First American Cash Advance of Georgia, (Feb. 18, 2005) available at www.ca11.uscourts.gov/opinions. In Jenkins, the partiesí arbitration agreement prohibited the bringing of class action suits. The plaintiff challenged the agreement alleging that such an agreement was unconscionable. The 11th Circuit had faced this issue before, and upheld the class action waiver, but that case had involved a federal law. See Randolph v. Green Tree Financial Corp., 244 F. 3rd 814. It should be noted that there are other states where state law prohibits such waivers.

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ADR Tips from Henning
 


How to prepare for mediation - Attitude

  1. Do you really desire to negotiate a settlement? What is an acceptable financial range in which to settle the case? Are you reasonable in your evaluation?
  2. What is your negotiation demand or offer? Plan the negotiation so that after adjusting your position two or three times, you end up in a range where you can reasonably accept settlement and closure.
  3. Objectively evaluate and write down the strengths and weaknesses of your claim. Do the same for the other party, as if you were on that side of the dispute.
  4. Identify factors that may affect your settlement, pro and con.
  5. Prepare questions to use during presentation and negotiations to help you clarify and present your view of the dispute and to lay the groundwork for your evaluation and eventual settlement.
  6. Be prepared to share responsibility as you objectively see it.
  7. Focus on your interests — not your rights!

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Henning and Our Neutrals in the News
 
 
  • Terrence Lee Croft, William S. Goodman and Ben Weinberg, all affiliated with Henning Mediation & Arbitration Service, were selected as Georgia Super Lawyers for 2005 in the practice area of ADR/Arbitration and Mediation, by Atlanta Magazine and Law & Politics.  Henning is proud to have 60% of the 2005 SuperLawyers in Georgia in this practice area.

  • Other Henning neutrals named Super Lawyers:
    Hunter Hughes
    and A. Lee Parks in the category of Employment
    Tom Asselin in the category of Construction Law
    Rex Smith(2nd year) and James McDonald  in the category of Insurance Defense.

  • Pat Siuta and Rex Smith presented “Mediation Strategies for Success” at the Property Loss Research Bureau/ Liability Insurance Research Bureau (PLRB/LIRB) 2005 Claims Conference & Insurance Expo April 17-20 in San Antonio, Texas.

  • Art Glaser will moderate a panel discussion on the effects of Tort Reform at the ICLE Seminar “Winning at Mediation – Civil Justice Reform Impact on Mediation: Is the Crystal Ball Broken?” May 20, 2005 in Atlanta.

  • Bill Goodman presented a one-hour segment on mediation at a seminar on trial preparation hosted by the general practice and trial section of the Georgia Bar Association at St. Simon’s Island, April 14.

  • Rex Smith will be speaking on mediation July 14 at the Fiduciary Law Seminar on St. Simon’s Island.

  • James McDonald spoke on “Buying Liability Insurance” at the Annual Caribbean Seminar of the Georgia ICLE in Mexico February 9-13.

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info@henningmediation.com

Telephone (770) 955-2252 or
(800) 843-6050
Fax: (770) 955-2494

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