Vol. 3

November 2004

In this issue:

Technology Use Increases in ADR

Kudos

Henning Neutral Profile
Eat at Moe's

News from the Courthouse—Mediation/Arbitration Updates
Court Upholds Punitive Damages in Arbitration Despite Waiver

ADR Tips

Henning and Our Neutrals in the News

New Henning Neutral

Technology Use Increases in ADR

Let’s face it, a lot of the world is techno-phobic and that includes a lot of attorneys. But the evidence is in… technology, when used properly... can play an important role in ADR.

Brynda R. Insley, principal of Insley and Race LLC, has practiced over 19 years, primarily in product liability and medical malpractice defense litigation. She has embraced technology to improve productivity, enhance information gathering and assessment, and to save money.

“Videoconferencing, for instance, is an extremely effective tool, particularly in cross examining witnesses because it allows the cross-examining attorney to assess the witness’s credibility. Videoconferencing also saves my clients money because I don’t have to bill 15 hours travel time going to and from the west coast,” says Insley.

“Although useful for deposition purposes,” says Ann Clanton, president of eNeutral, Henning’s technology arm, “an additional advantage of videoconferencing is the person with the authority to make decisions, such as the claims adjuster, can be ‘present’ in the mediation without leaving his or her office. This is a tremendous aid in reaching a settlement.”

Insley also uses wireless Internet access at every mediation. “Henning Mediation & Arbitration has the technology to enable any attorney’s laptop to directly access the Internet,” says Clanton. “This wireless Internet service allows attorneys and their clients to keep in touch with their office and access their email.”

“One mediation lasted 11-1/2 hours,” said Insley. “With wireless Internet I was able to use the downtime productively.”

Insley also cites an example of how wireless Internet helped in an actual mediation. “The plaintiff identified a new trial expert at the mediation. I wanted to assess the impact this person would have on negotiations. With online access supplied by HMA from my own laptop, I was able to research him immediately and obtain an IDEX report. I found that he was a plaintiff’s hired gun, usually paid to say what the plaintiff wanted and not a leading objective authority. This knowledge influenced how we proceeded.”

Most attorneys, Insley included, agree that technology is much more beneficial in ADR than in the courtroom. Gilbert H. Deitch of Bauer & Deitch says, “Technology is a higher risk in the courtroom. I use electronic exhibits in ADR but in front of a jury, I use the big poster exhibits where the only thing I can screw up is to drop it.” He added, “However, technology in ADR is very effective, especially if it’s simple and direct.”

“More and more attorneys are bringing their exhibits into ADR sessions electronically – PowerPoint presentations, forensic animation, CDs, DVDs, videos -- all allow a more personal and more graphic representation of the case. Fewer and fewer are bringing in mounted exhibits,” says Clanton.

Insley agrees. She thinks that PowerPoint animation and “day-in-the-life” exhibits are able to portray an emotional component missing in other illustrations. This can help her clients, the defense, understand the real issues and can help move the case to resolution.

Technology can play a powerful role in ADR. A neutral ADR host such as Henning Mediation & Arbitration can provide tools not available in an attorney’s office. For instance, Henning offers, in addition to online Internet access from your own laptop, videoconferencing, LCD projectors, printer access from your own laptop and other features.

The use of technology in ADR can save time, money and have a positive impact on the case resolution.

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Kudos

“HMA is excellent! I have mediated 20 cases this year and hope to do 20 more. Staff is excellent – Rex, Tom, Art, Terrence, Jim Stewart all superb!”
Pete Law
Peter Law, PC

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Henning Neutral Profile - Thomas Tobin

How does one of Henning’s busiest neutrals relax? In the soothing world of restaurant ownership. In a city where restaurants come and go as quickly as the latest teenage diva, Henning neutral, Tom Tobin, finds owning a restaurant a relaxing change of pace from mediating.

“There’s less intellectual tension,” said Tobin who co-owns two Moe’s, southwest fast casual grills in Atlanta.

Tobin was one of the earliest trained mediators in the state. His father, a judge in Florida, influenced him to go into the law. With a J.D. from the University of Florida, sixteen years ago Tobin decided to train as a mediator in Seattle at United States Arbitration and Mediation. Returning to Atlanta he practiced law and became a magistrate judge. Although he retains his law practice at Tobin & Hoffspiegel, Tobin feels it is important to focus in one area alone and that’s mediation. “I found it wasn’t fair to my clients to be bouncing between two worlds so I’ve concentrated on mediation.”

To be a good mediator, Tobin says, “You have to have patience and the capability to understand both sides of an argument.” Asked for a tip for parties in mediation, he suggests really knowing your case and all of its intricacies. “It really impresses the other side of a mediation. A mediation is always a learning process and really understanding how the other side thinks eliminates surprises.”

Despite the “relaxing” nature of the restaurant business, Tobin admits to a “need for speed”. He enjoys snow and water skiing and as the picture shows, was privileged to take a ride in a Winston Cup car at Atlanta Motor Speedway.

Married to his high school sweetheart, Valerie, also an attorney, Tobin says his greatest accomplishments are his two daughters. Jessica, 22, just graduated from UGA and is considering entering law school and Becca, 18, is in New York studying at the American Music and Dramatic academy which trains Broadway hopefuls.

As one of Henning’s busiest mediators, it’s probably a good thing that Tobin has a tranquil hobby like restaurant ownership.

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News From the Courthouse—Mediation/Arbitration Updates

The court held that punitive damages were waived only if the governing law permitted such a waiver. As Missouri law and the Federal Arbitration Act (FAA) were to be applied to the agreement, the court said Missouri law did not permit a waiver of punitive damages for intentional torts. However, the court also noted that had the parties to the agreement intended its interpretation to be governed solely by the FAA, which allows terms in arbitration agreements contrary to state law, the punitive damages waiver might have held up.

This case has significance for cases brought under the amended Georgia Arbitration Code (GAC). Under the revised GAC, an award may be vacated if an arbitrator manifestly disregards the law. In Stark the Eighth Circuit held that the arbitrator was not guilty of manifest disregard of the law for awarding such large damages because, among other issues, there was no clear evidence that the arbitrator had identified the applicable law and then proceeded to ignore it.

The court’s opinion is at http://www.ca8.uscourts.gov/index.html.

ADR Tips from Henning

**** When drafting arbitration agreements, consider whether to insert a choice of law provision. If the chosen state’s laws conflict with an arbitration clause provision, it may lead to litigation.****

***** If you want to seek vacation of an arbitrator’s award based on manifest disregard of the law, provide the arbitrator with copies of the relevant statutes and case law.****

*****Arbitrators typically render a “standard” award that does not contain their reasoning or conclusions of law. To preserve the right to make an argument that the arbitrator manifestly disregarded the law, specify in your arbitration agreement that the arbitrator is to render a reasoned award that contains conclusions of law.****

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Henning and Our Neutrals in the News

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New Henning Neutrals

This distinguished professional has recently joined Henning’s experienced Panel of Neutrals. For his full profile, go to www.henningmediation.com. Patrick G., Jones, Esq. Jones has practiced law for over 25 years and brings a diverse background to his mediation practice. In addition to his 16 years in private practice serving as partner in three major Atlanta law firms, he has served as Chief Legal Officer and Chief Financial Officer of a pubic technology company. He was also a CPA with a Big Eight accounting firm. His areas of expertise include commercial and business disputes, contract disputes, intellectual property, employment, probate, real estate, securities claims, technology, trusts and estates.

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