Vol. 2
September 2004


 








In this issue:

News from the Courthouse--Mediation/Arbitration Updates
Care Needed Drafting Arbitration Clauses
New Survey of In-House Counsel Finds Widespread Arbitration/Mediation Use


Multiparty Mass Tort Update
European Asbestos Litigation

ADR Tips

Henning Neutral Profile
Living off the Kindness of Strangers

Henning and Our Neutrals in the News

New Henning Neutrals




Want to improve your success at mediation?  Hone your skills by taking one of Henning’s ADR training classes.  The classes include hands-on practice and are taught by highly respected mediators and attorneys with experience “in-the-trenches”.  Check out www.henningmediation.com for more details on each class.

International Employment Seminar
Put Oct. 6 on your calendar to attend Solving Employment- Related Issues Facing your Business, a seminar for international and domestic businesses operating in the Southeast.  Topics of the seminar include Using Mediation and Arbitration to Avert Litigation, Employing Foreign Workers, and Protecting Intellectual Property Developed by Employees.  For more information on the speakers and the agenda go to: www.globalatlanta.com.


 



Upcoming ADR Training Courses

Atlanta, GA
Arbitration
     Sept. 15; Oct. 13
Divorce Mediation
     Oct. 14-16 & 28-29
Employment Mediation
     Oct. 26-27
GA Civil Mediation
     Sept. 10-11 & 17-18
Mastering Mediation Advocacy
     Oct. 12
Mediation Observation
     Sept. 23-24
Overcoming Impasse
     Sept. 22

Knoxville, TN
TN Civil Mediation
     Sept. 29-30 & Oct. 1-2

For more information, go to www.henningmediation.com




 
News from the Courthouse--Mediation/Arbitration Updates
 

Care Needed When Drafting Arbitration Clauses



Courts have been scrutinizing arbitration clauses in the employment and consumer areas, where the parties do not have equal bargaining power, to ensure that these provisions are fair to the employee and consumer.  The Fifth Circuit Court of Appeals recently invalidated an arbitration clause contained in Sprint’s, Cingular’s and other phone companies’ contracts with their cell phone customers.  The court found the arbitration clause to be unconscionable and unenforceable

because it required the consumer to arbitrate any claims it had against the company, while preserving the company’s right to go to court.  Iberia Credit Bureau Inc. et al. v.  Cingular Wireless LLC et al., ( No. 03-30613, decided July 21, 2004).  The courts have also struck down arbitration clauses that limited remedies an arbitrator could award when a statute provided for specific types of relief.  When drafting arbitration clauses in the employment and consumer area, attorneys should ensure that arbitration obligations are mutual, and that the agreement provides substantive and procedural fairness so the clause will withstand scrutiny if challenged.

Survey of General Counsel Finds Widespread Use of Mediation & Arbitration

The international law firm of Fulbright & Jaworski L.L.P. recently surveyed 300 in-house counsel to identify emerging litigation trends and the efficacy of mediation and arbitration.  Companies from 41 states responded to the survey.  Among the companies that responded, the median sized company had gross revenues of $600 million, while 30% had revenues of $1 billion or more, and 30% had revenues under $100 million.  Respondents identified their top five areas of litigation exposure as: labor and employment, contract disputes, intellectual property, product liability and class action lawsuits.

The survey found that 43% favored arbitration as a dispute resolution method, and 91% said that their arbitration usage would stay the same or increase over the next several years.  Counsel cited cost savings and predictable results as benefits of using arbitration instead of litigation. 

Counsel also responded that they frequently used mediation to resolve disputes, with 60% favoring this process.  Cost savings and speed were factors that they noted as benefits of mediation.  Interestingly, mediation has gained favor “even among larger companies that have greater resources to commit to big-ticket litigation,” according to Mark Baker, a Fulbright attorney.

In-house counsel identified unpredictable costs as the top concern when dealing with litigation counsel, which may be a reason that many are turning to mediation and arbitration to resolve disputes.  For a copy of the complete survey results go to www.Fulbright.com/litigationfindings.

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Multiparty Mass Tort Update
 

European Asbestos Litigation


Recent reports indicate that the number of serious cases of asbestos contamination is still rising and it is estimated that during the next 20-30 years the U.S. will see $130-250 billion in claims.  In Europe, the number is expected to be $80-100 billion but disease rates there are rising faster. As a result of asbestos liabilities, about 70 companies have filed bankruptcy in the U.S.

Since asbestos litigation claims were consolidated about twenty years ago in the U.S., settlement plans have been developed.  Under these plans, all claimants have to go through a central filing center. These plans are global in scope and include European claimants who may have been exposed. However, foreign claimants haven’t fully filed under U.S law. 

All of the current settlement plans have Alternative Dispute Resolution Plans.  If claimants reject the settlement plan, they may choose to go to mediation, binding arbitration, non-binding arbitration or even to trial.

 Henning Global is heavily involved in mediating these cases.  We have also been hired by a European law firm to assist with the European claimants and we are in consultation with the government of France to advise claimants of their rights under the U.S. system and to help them enter the U.S. settlement plans. Henning would serve as the ADR services firm and our panel of neutrals would resolve cases that couldn’t be settled in the plan.

Henning has provided special masters on mass tort cases, assisted with claims management as well as offered fiduciary services.  Our experienced panel of neutrals has helped with international mass tort claims resolution for Dalkon shield, breast implant and other high-profile cases.  For more information on Henning Global ADR and international ADR, visit Henning Global.

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ADR Tips from Henning
 
 

**** Since a mediation is not adversarial as a trial or arbitration, a defendant would be wise to tell  a personal injury plaintiff up front in the mediation that they are sincerely sorry that the plaintiff has been hurt.  This goes a long way in the negotiation process. ****

**** A good way to start a negotiation is to allow the plaintiff’s attorney to first state their case without interruption, then have the plaintiff conversationally tell their story.  By the plaintiff being allowed to talk about what is important to them, the negotiation process can proceed more expeditiously. Attorneys can request that their neutral incorporate this conversation early in the mediation. ****

***** Henning has a list of consideration points for effectively drafting a mediation agreement. One of these points is to include in the settlement agreement a clause confirming that the parties and their lawyers have read and signed the agreement and that each signatory has entered into it freely and without duress, having first consulted with their legal advisers. ****

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Henning Neutral Profile
 
 

“Living on the Kindness of Strangers”



Blanche DuBois in “Streetcar Named Desire”, who uttered those words, wouldn’t have held up on the path that prompted Bill Goodman, 63, to say them.  The path was actually the entire 2,175 mile long Appalachian Trail that the Henning mediator completed this summer.

It took Bill four years to achieve his goal, various treks cut short by a stress fracture in his ankle and two surgeries.   The most important thing, he says, he learned from the experience was the kindness of strangers – his fellow hikers and the people in communities along the trail.


“I came to a clearing about 75 miles into the Maine 100 mile wilderness and a guy had set up a tent pavilion and with a cooler full of icy drinks, was cooking hamburgers, hotdogs and corn for the hikers –all free.”  He too, had completed the trail and was exhibiting “Trail Magic,” as hikers call it.

“I met a man in Bennington, Vermont who was a former hiker.  He was from Utah and he had come out to the northeast just to help hikers,” said Goodman.  “The saying goes that the only difference between a hiker and a homeless person is Gore-Tex®. This means you may have money in your pocket but you still need folks to help you get to town to find a place to sleep and something to eat and a way back to the trail the next day.  In one good-sized town, a retired IRS lawyer drove me all around to run errands -- to the hardware, grocery, hotel, laundromat, while picking up other hikers in town needing help.”

Goodman serves in the Kairos Prison Ministry as well as being an avid supporter of The Wilderness Society, an interest in conservation starting when he majored in forestry at Clemson.  A stint in the Marines involved him in legal work, so after the Marines he was off to the University of Georgia Law School. Goodman ultimately founded the trial law firm of Goodman, McGuffey, Aust & Lindsey, LLP, primarily representing defendants. He got interested in mediating while taking training to improve his skills as an advocate in mediation. He was one of the first mediators Ed Henning enlisted when HMA opened its doors.  Goodman’s thoughts on mediation -- “90% of plaintiffs just want to settle and get on with their life.  Lawyers are more into the fight itself. But I do see attorneys learning to be more flexible and to listen to what their clients really want.”

“Maybe,” mused Goodman, “there’s a good connection between mediation and what I learned on the trail.  You learn perseverance, but at the same time it’s really humbling to be out in the elements and know you’re not in control.  God’s in control there. In mediation, the parties are in control.”

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Henning and Our Neutrals in the News
 

• Henning mediator Hezekiah Sistrunk was commended by Georgia State University for a pro bono mediation involving a racially-charged situation between Pi Kappa Alpha fraternity and the Black Student Alliance. Two students appearing in black face at a hip hop party at the fraternity initiated the incident which escalated as a flier circulated by the alliance likened the fraternity to the KKK. As Hazel Scott, Vice President for Student Services wrote in a letter to Henning, “an external agency and mediator was (sic) essential for the mediation to (be) successful as the University administration was perceived as biased and inept in its management of the situation. Henning Mediation & Arbitration Services, Inc. and Mr. Sistrunk was (sic) the perfect combination.”

Hon. Dorothy T. Beasley, former chief judge for the Court of Appeals of Georgia and an HMA neutral, co-chaired the Host Committee for the ABA Central European and Eurasian Law Initiative Award Ceremony at which President Mikheil Saakashvili of the Republic of Georgia received the award for legal and judicial reform. As a member of the Southern Center for International Studies, she also arranged the Award for Reducing World Poverty given to James Wolfenshon, President of the World Bank.

• HMA representatives attended three recent meetings of the Mediation Forum of the Union of International Lawyers (UIA). A presentation by Guerry R. Thornton, Jr. of Henning Global ADR was made at the Milan meeting on “ADR Plans in Mass Tort Cases,” and he participated in a panel discussion on “New Services Offered by ADR Firms” in Windsor, England.

Patricia A. Siuta and Hon. G. Grant Brantley, former senior superior court judge, will be speaking at the Insurance Law Institute Sept. 29-Oct. 1, St. Simons Island, GA. Siuta’s topic is “ADR — Winning at Mediation”. Brantley will speak on “Recent Changes in Judicial Election Law.”

Hunter Hughes and Patricia A. Siuta will be speaking at a conference entitled, “Solving Employment Related Issues Facing Your Business” on Oct. 6 at the Gwinnett Chamber of Commerce. Their topic is “Using Mediation and Arbitration to Avert Litigation.”

Patricia A. Siuta and Terrence L. Croft will be speaking at the Solo and Small Firm Institute & Technology Showcase Oct 7-9 in Savannah, GA. Siuta’s topic is “Winning at Mediation & Arbitration” and Croft’s topic is “So You Want To Be A Mediator? Don’t Give Up Your Day Job.”

Patricia A. Siuta provided Mediation Advocacy Training to members of the Drew Eckl & Farnham law firm at the law firm’s retreat on Sept. 10 in Asheville, North Carolina.

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New Henning Neutrals
 
 

This distinguished professional has recently joined Henning’s experienced Panel of Neutrals. For his full profiles, go to www.henningmediation.com.

E. Speer Mabry, III
Managing Partner, Mabry & McClelland, LLP


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