Vol. 13

June 2006

In this issue:

Henning Technological Renovation Saves Attorneys Money

News from the Courthouse — Mediation/Arbitration Updates
Arbitration Clause Challenges for Arbitrator, Not Court, to Decide

Henning Neutral Profile
More than a Sunday Duffer

Henning and Our Neutrals in the News

Henning Technological Renovation Saves Attorneys Money

In its continuing drive to provide a mediation center that meets attorneys’ needs, Henning has completed a technological renovation.  Conference rooms are now equipped with permanent audiovisual equipment that includes plasma screen televisions, independent computer work stations, theater quality projectors and screens. 

“We’ve watched attorneys lug in demonstration boards, projectors and equipment or worse yet, watched them pay for the services of a-v vendors to rent and run equipment for their mediation presentations,” says Richard Colley, president of Henning Mediation and Arbitration.  “We felt this upgrading of our already impressive technological capabilities would be a real value-added service.  There is no charge for the use of Henning’s audio-visual services.”

About 1/3 of the cases at Henning require some sort of audio-visual or visual presentation, adds Colley.  “We recognize the importance of a professional presentation at a mediation session and wanted to be sure our clients had access to whatever they needed to accomplish that.”

The technological upgrade enhances existing Henning technological capabilities including wireless access, laptops, video conferencing.

One of the advantages of mediating at a neutral site, instead of the opposing counsel office, is that Henning can supply secure services.  For instance, if attorneys wish to email their presentation ahead of time to Henning, it can be ready for them when they arrive.  And they know it has remained secure.

The furnishings of the conference rooms were also renovated to accommodate the new technology.  No wires spread over the floor.  Everything is built-in and works at the flick of a switch.

News From the Courthouse

Arbitration clauses, once used exclusively in commercial cases, now are commonly found in consumer and employment contracts.  Some courts have expressed concern over clauses requiring arbitration in these contracts due to the potential for abuse because consumers and employees lack the bargaining power that commercial parties have. This concern was expressed by Montana Supreme Court Justice James Nelson in a case in which the court had to apply a recent holding by the U.S. Supreme Court.

In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. _____ (2006) the U.S. Supreme Court decided the issue of whether the court or the arbitrator should determine whether a contract containing an arbitration clause was void for illegality.  The Court held that “regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” 

In May, the Montana Supreme Court became the first state court to apply this holding in a case involving a challenge to a home financing loan involving an arbitration agreement (Martz v. Beneficial Montana, Inc. (No. 04-716, May 4, 2006).

In his concurring opinion in Martz, Justice James Nelson expressed his unhappiness with the U.S. Supreme Court’s decision, stating:  “My frustration with our inability to reach a legally correct, fair and just result in this case stems directly from the fact that the United States Supreme Court has, from the beginning, improperly conflated the Federal Arbitration Act (FAA) into something which Congress never intended it to be.  Indeed, under the High Court's jurisprudence, the FAA and pre-dispute arbitration clauses in contracts of adhesion have now become little more than instruments of economic Darwinism by which predatory lenders-such as Beneficial and Buckeye-and other large corporations victimize main-street businesses, the unsophisticated, the elderly, the poor, and what is left of the middle class." 

Despite its frustration with the U.S. Supreme Court’s holding, the Montana Supreme Court held that the arbitrator, and not the court, must decide whether the contract that contained the arbitration agreement was void for illegality.

Table of Contents

Henning Neutral Profile - Ronald A. Lowry

 Lowry continues his interest in the game in a number of ways including playing championship golf at local courses. He is the current champion of Brookstone Country Club, a Brookstone Senior Champion three times and a former champion at Druid Hills Country Club.  However, his favorite golf activity is serving on the Rating Panel of Golf Digest magazine.  In that capacity, he is sent by the magazine to play courses around the southeast, and occasionally around the country, in order to rate courses for Golf Digest’s famous “best course” rankings.

Lowry enjoys additional travel as a result of wife Deborah’s job as a flight attendant for Delta Airlines.  They have two daughters, Leigh, a recent English and American Literature graduate of Rollins College and Rhonda, a sophomore this fall at Agnes Scott College.

Another of Lowry's interests over the years has been writing.  A Washington, D.C. job during the Watergate era doing impeachment research for U.S. Representative Robert G. Stephens of Georgia began a lifelong interest in the impeachment process.  He has written a number of articles on the subject including “Presidential Impeachment:  The Case of Andrew Johnson” and “Presidential Impeachment:  The Legal Standard and Procedure”.

Lowry was one of HMA founder Ed Henning’s first clients when HMA opened.  Henning later recruited him as a mediator.  “I was such a believer in mediation as a lawyer that I jumped at the chance to train as a mediator,” says Lowry.  “I’m a very open person – what you see is what you get and I think I’ve been successful as a mediator because both sides feel they can be honest with me and that helps the dialogue in a mediation.”

For more information on Ronald A. Lowry, go to www.henningmediation.com.

Table of Contents

Henning and Our Neutrals in the News

Henning neutral Rex Smith has speaking engagements at the following events:

• 2006 Annual Meeting of the Georgia Defense Lawyers Association, June 8-11, 2006, at the Fairmont Southampton in Hamilton, Bermuda. His presentation will be on Mediation.

• IASIU Annual Seminar & Expo on Insurance Fraud, September 10-13, 2006, at the La Quinta Resort & Club in La Quinta, California. Smith’s topic will be Detecting Fraudulent Psychological and Neuropsychological (Brain) Injury Claims.

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