Vol. 15

November 2006

In this issue:

A Conversation with Griffin Bell

New Henning Affiliation Offers Attorneys ADR/Trial Presentation Services

News from the Courthouse — Mediation/Arbitration Updates
Importance of Confidentiality Provision in Agreement to Mediate
By Pat Siuta

Henning Neutral Profile
A New Lease on Life

Henning and Our Neutrals in the News

A Conversation with Griffin Bell

Griffin Bell, senior counsel at King & Spalding, has had a distinguished career in private practice as well as public service. In addition to serving for 15 years as a United States Circuit Judge, he served as Attorney General of the United States from 1977-1979 in the Carter Administration and was Vice Chairman of President George H.W. Bush’s Commission on Federal Ethics Law Reform. During the Iran-Contra investigation, he was counsel to President Bush. A past president of the American College of Trial Lawyers and a member of the American Law Institute, one of his most lasting achievements involves his role in the growth of Alternative Dispute Resolution in the United States. In an exclusive interview with Henning Mediation and Arbitration, he discusses ADR and its role in the American justice system.

The growth of Alternative Dispute Resolution in the United States can be traced to a speech in 1906 delivered by Roscoe Pound, entitled the “Causes of Popular Dissatisfaction with the Administration of Justice”. It centered on the slowness of the judicial process. Seventy years later, to mark the anniversary of the speech, the Chief Justice of the United States, Warren Burger convened a Pound Conference to re-visit Pound’s original discourse.

The conference identified four areas of concern: overcrowded court dockets, affordability, citizen access to justice, and length of time from filing of complaints until case disposition. According to Judge Griffin Bell, one paper, by Harvard Law School professor Frank E.A. Sander, made an impact at the conference. The “Courthouse of Many Doors” pointed out the need to broaden the procedural system so it would encompass four different procedures: mediation, arbitration, fact-finding and trials. The paper argued that the ideal system of justice would have someone walk into a courthouse, describe their problem and then be assigned to go through one of those four “doors” to obtain justice. The paper became the theme of the entire meeting.

About the same time as his appointment to Attorney General of the United States, Chief Justice Burger appointed Bell to chair the “Pound Conference Task Force Follow-up”. Bell established a department in the Department of Justice to address the Pound Conference. Subsequently, Congress enacted a law creating a pilot program of arbitration courts in three cities. The current role of ADR grew out of these efforts.

“In Europe at that time there was a lot of arbitration,” says Bell. “We had some arbitration being used, primarily in construction cases, but there was no formal mediation process in the U.S. The Pound Conference in 1976 really began the mediation efforts here.

Many people in the U.S. had been reluctant to use arbitration because they were afraid arbitrators would just “split the difference” and not really analyze the case. Mediation provided people with a means to try to resolve issues. If mediation didn’t work, they could still proceed to arbitration.

New Henning Affiliation Offers Attorneys ADR/Trial Presentation Services

At arbitration or mediation, the ease of document retrieval and the quality of the presentation is critical. If your case, (including documents, exhibits and video depositions synced to transcripts) is prepared and presented via trial presentation software for mediation; should the case go to trial, much of the document and exhibit preparation work is already done.

Henning announces an affiliation with a leading company in the field of ADR/trial presentation technology, Med-Art & Legal Graphics Co. With its years of experience in providing demonstrative evidentiary exhibits, animation and litigation presentations, Med-Art & Legal Graphics can make all case documents interactive with the ability to be available and accessed in seconds. Think of the convenience of not lugging banker boxes full of paperwork to mediation. Med-Art's trial consultants can highlight, annotate documents and provide on-screen transcripts of video depositions for easy access to particular points of testimony.

"Across the country, attorneys and judges are overcoming their hesitancy about technology and are digitally presenting their cases that streamline the whole mediation or trial process," says Shelley Watts, president of Med Art & Legal Graphics. "In some states, for instance, judges are mandating paperless filings and courtroom presentations. We have worked with our clients to help them comply. Attorneys who have digitally prepared their mediation documents and exhibits are ahead of the game," she notes.

"We feel this is another way to serve our clients," says Richard Colley, president of Henning Mediation and Arbitration. "By calling us, we can assist them in getting everything they need to simplify their mediation or arbitration. The technology Henning offers combined with our unparalleled panel of experienced neutrals gives every attorney the tools he or she needs for a successful settlement."

The cost of document preparation can be shared by plaintiff and defendant to make the process as cost-effective as possible. Or one side may choose to utilize the service on its own.

To find out more about this new service, call Henning at 770- 955-2252 or (800) 843-6050 or visit our web site at www.henningmediation.com.

News From the Courthouse - Mediation/Arbitration Update

Agreements to Mediate, such as the one used at HMA, typically include a confidentiality agreement. The importance of including such a confidentiality agreement was illustrated recently in the case of Deluca v. Allied Domecq Quick Service Restaurants, 2006 WL 2713944 (EDNY Sep. 22, 2006). DeLuca filed an age discrimination complaint with the EEOC against his employer (the owner of Dunkin Donuts) alleging age discrimination. After filing the complaint he then applied for a Dunkin Donuts franchise, for which he was turned down. During the EEOC mediation DeLuca offered to settle his claim if he was given a franchise. In response to this request, the Defendant’s attorney allegedly said, “We’re not in the process of giving out franchises to people that are suing us or made complaints.” When the case did not resolve in mediation, DeLuca filed a claim alleging that Dunkin Donuts retaliated against him for filing a discrimination case, by denying him a franchise. At trial he wanted to use the statement made in mediation by the Defendant’s attorney to establish retaliation. Defendant argued that the statement was confidential pursuant to Federal Rule of Evidence 408 and the Administrative Dispute Resolution Act (ADRA, applicable to mediations involving federal agencies). The court held that neither ADRA nor Rule 408 would require exclusion of the statement because the claim was based upon a wrong committed during the mediation. The court did exclude the statement, however, finding that the confidentiality agreement the parties signed prior to mediation, which provided that statements made during mediation could not be used as evidence, offered even broader protection than ADRA or Rule 408.

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Henning Neutral Profile - A. Dennis Caniglia

A New Lease on Life

Henning Neutral A. Dennis Caniglia knows the true meaning of a new lease on life.  Last December he was one of only 160 people in Georgia in 2005 to receive a liver transplant.  Now an active proponent of organ donation programs, Caniglia works to make people aware of the need for liver donations.  “A lot of people don’t think about it but there are 90,000 people waiting for organ donations.  The liver is second only to kidneys as the most needed organ,” says Caniglia.  “I was told I would die within a year without a transplant – I went a little longer. I can’t tell you what a difference the transplant made, within six months, I was back to 100%.”

Caniglia’s journey to mediation is somewhat different than many neutrals, most of whom came to Alternative Dispute Resolution as attorneys representing clients.  He became interested in mediation while working for St. Paul Fire & Marine Insurance Company.  “I recognized in the early 1980’s that mediation was a way to get rid of cases without the expense and vagaries of a jury trail.  St. Paul was one of the pioneers to use ADR to settle cases.”  His last position at St. Paul was as National Director of Major Litigation settling cases around the country. His experience resulted in Georgia Supreme Court Chief Justice Harold G. Clarke asking him in 1992 to serve a three-year term on the Supreme Court of Georgia’s Commission on Alternative Dispute Resolution which was charged with integrating the ADR process with the court system.

“That experience sealed it,” says Caniglia.  Upon retirement from St. Paul in 1999, Caniglia became a mediator after attending the Straus Institute for Dispute Resolution at Pepperdine University School of Law in Malibu, California.   Caniglia admits to distractions there, however. “I don’t see how anyone can go to Pepperdine full time, it’s the most gorgeous location I’ve ever seen,” he chuckles.

Widowed two years ago, Caniglia spends his non-mediating time promoting organ donation, playing golf, playing with his Brussels Griffon dog, Hawk and indulging in his other long-time interest – collegiate football.  Caniglia’s father, Al Caniglia, played briefly for the Green Bay Packers and was football coach at the University of Nebraska at Omaha. In fact, the university’s football stadium is named for his father.  Although a bad knee kept Dennis Caniglia from a football career, he is on the Board of Directors of the National Football Foundation/College Hall of Fame and the Texaco/National Football Foundation High School Scholar/Athlete Scholarship selection committee.  This is the organization that determines the recipients of the annual scholarships awarded in conjunction with the Peach Bowl. He’s also active in local politics, getting the political bug as an unpaid communications coordinator in Nebraska for a local Congressman in 1971. 

However, when asked what some people wouldn’t know about him, he returns to the transplant.  “Everybody knew I was really sick but probably a lot of people aren’t aware I’ve recovered so well.”

For more information on A. Dennis Caniglia, go to www.henningmediation.com.

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Henning and Our Neutrals in the News

The Hon. Dorothy Beasley, a Henning neutral, participated as a panelist in a Regional Judicial Conference “Moving Toward a More Independent and Efficient Judiciary” in Batumi, Republic of Georgia, Oct 5-7, for judges from Azerbaijan, Armenia, Ukraine, and Republic of Georgia. The program was organized by the American Bar Association Central European and Eurasian Law Initiative, and was sponsored by USAID and several German entities. Judge Beasley spoke on the subject of judicial education.

On Oct. 1, Henning neutral Terrence Lee Croft, as a co-chair of the Legal Eagles motorcycle gang of the Atlanta Bar Association, coordinated a 200-mile motorcycle ride through northwest Georgia for more than a dozen riders and their passengers. 

Croft spoke Oct. 27, at the ICLE Seminar on Georgia Personal Injury Practice. His topic was “Winning in Mediation”. He was also selected, once again, as one of the best lawyers in America for 2007 in the field of ADR by The Best Lawyers in America.

Henning neutral Rex Smith was a guest speaker on “Winning Mediations with Ethics” at the 25th Annual Insurance Law Seminar.

Smith will be speaking at the Trial Advocacy Seminar at the Georgia Public Broadcasting Studio in Atlanta on December 1, 2006. His topic will be “Professionalism, Integrity and Ethics at Trial”.

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

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