Vol. 1

August 2004

Letter from the Founder

By Edward J. Henning

We intend to provide you with updates on rulings in the arbitration/mediation area as well as some suggestions as to how you can minimize your costs and maximize your success in ADR. You’ll also learn a little more about the neutrals exclusively affiliated with Henning and services you may find useful.

We welcome your comments and suggestions as to areas we can cover in future newsletters that you would find beneficial.

Regards,
Edward J. Henning
Founder and CEO
Henning Arbitration and Mediation

In this issue:

News from the Courthouse--Mediation/Arbitration Updates
New Rulings Affect Law Firms Use of Mandatory/Arbitration
Agreements to Limit Their Risk of Employment Litigation

ADR Training Can Maximize Success
New Henning Courses Available

ADR Tips

Henning Neutral Profile
Did Broadway Lose a Star to Henning?

International Employment Seminar
Put Oct. 6 on your calendar to attend the international seminar on Solving Employment Related Issues Confronting your Business. Sponsored by Henning Mediation & Arbitration; Troutman Sanders, LLP; Global Atlanta newsletter; and Gwinnett Chamber of Commerce. A variety of noted speakers will address employment implications of the international marketplace.

News from the Courthouse--Mediation/Arbitration Updates

New Rulings Affect Law Firms Use of Mandatory Arbitration Agreements to Limit Their Risk of Employment Litigation

Employment lawyers often recommend that employers use mandatory arbitration agreements requiring employees to arbitrate, rather than litigate, any employment complaint, in an attempt to forestall class action lawsuits and limit the employer’s financial exposure. Now a number of law firms are heeding their own advice and requiring their employees to sign such agreements. The use of arbitration agreements in the employment arena was previously approved by the U.S. Supreme Court in Circuit City Stores v. Adams, 532 U.S. 105 (2001) with a narrow exception for those workers "actually engaged in the movement of goods in interstate commerce." Despite the Supreme Court’s ruling, the EEOC had, until recently, opposed mandatory employment arbitration as being inconsistent with employment discrimination laws.

A recent case involving a law firm’s mandatory arbitration agreement resulted in the EEOC modifying its position. In that case, a legal secretary was terminated one day after he was hired when he refused to sign the law firm’s mandatory arbitration agreement. He filed a complaint with the EEOC and the EEOC filed suit in a California federal district court alleging that the law firm had illegally retaliated against the employee by denying employment to him for refusing to waive his statutory rights.

The EEOC decided to settle the case after the 9th Circuit Court of Appeals held that the agreement was valid, overturned its 1998 decision opposing mandatory arbitration plans, and remanded the case for further proceedings. The 9th Circuit had, until this decision, been the lone holdout among the circuits in finding fault with mandatory arbitration plans. To settle the case, the law firm agreed to make a few minor revisions to its arbitration plan. EEOC v. Luce, Forward, Hamilton & Scripps, C.D. Cal., No. LA CV 00-1322, settlement approved 6/18/04).

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ADR Training Can Maximize Success

The classes will be under the supervision of Patricia A. Siuta, President of HMA’s Training and Consulting Division. Pat is an experienced mediator, arbitrator, lawyer, and former law school professor who leads a team of experienced conflict resolution trainers. She has taught thousand of lawyers, judges, managers, and other professionals from insurance companies, law firms and corporations including Coca Cola and Home Depot.

"What makes these classes unique, says Siuta, "is that they are not just designed for attorneys. Human resource managers and claims managers will also find them beneficial. Another important feature is that they are all taught by experienced professionals – people who have been in the trenches and who provide hands-on role-playing opportunities for trainees to practice the learned skills."

Course Offerings: (Detailed descriptions of the classes, prices, and online registration are available at www.henningmediation.com.

• Mediation Observation
• Civil Mediation in Georgia /Civil Mediation in Tennessee
• Overcoming Impasse
• Arbitration
• Divorce Mediation
• Employment Mediation
• Master Mediation Advocacy
• Divorce Practicum

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ADR Tips from Henning

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Henning Neutral Profile

Much of Croft’s free time is spent supporting bar activities. Testament to his involvement is his receipt of the Watkins Award for Distinguished Service given by the Atlanta Bar Association for leadership in bar activities. His long list of Bar accomplishments can be seen in his profile at www.henningmediation.com

He‘s also a Fellow of the American College of Civil Trial Mediators, a group of 100 mediators across the country who are dedicated to improving the quality of mediation by sharing ideas and experiences. A number of Henning neutrals are members of this prestigious group.

However, those Yale genes didn’t disappear … Croft is a charter member of the Atlanta Bard Association. This group of attorneys and judges produces a musical wholly written, composed and performed by members of the Atlanta Bar with proceeds going to the Atlanta Bar Foundation. This year the group raised over $50,000 through its 6 performances in a downtown Atlanta theatre.

The biggest mistake he sees in mediation, says Croft, is when plaintiff’s attorneys save a surprise for the mediation. In other words, when they don’t supply sufficient information to defense attorneys before the mediation so the claim representative and the defense attorney can be prepared, as well as authorized, to address additional damages. Defense attorneys try surprises as well, but the plaintiffs in the room usually have the authority to respond to a defense surprise. “That’s not the case if the plaintiff changes the playing field,” said Croft.

So how does a competitive mediator relax? When he’s not tooling around with the Legal Eagles, a biker group of attorneys and judges, he relaxes at his cabin in the mountains on the fittingly-named Fighting Town Creek, a location where Indians met for athletic contests in lieu of going to war. He also spends time with his six children and nine grandchildren. “My retirement plan is to pay tuitions and die,” says Croft. Three children have graduated from law school, one is a board-certified pediatric psychiatrist, another is a decorator and one is a rising junior at Tisch School of Art at New York University – studying to be …….an actress.

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Henning and Our Neutrals in the News

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New Henning Neutrals

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Telephone (770) 955-2252 or
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Fax: (770) 955-2494

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