| Vol. 18 | HENNING HERALD | June 2007 |
UPCOMING TRAINING DATES:
Civil Mediation
- July 18-21 - Atlanta, GA
- Aug. 15-18 - Atlanta, GA
- Sept. 26-29 - Atlanta, GA
Arbitration
- July 17 - Atlanta, GA
- Aug. 23 - Atlanta, GA
- Sept. 25 - Atlanta, GA
Mediation Observation
- July 21 & 22 - Atlanta, GA
- Aug. 18 & 19 - Atlanta, GA
- Sept. 29 & 30 - Atlanta, GA
Rule 31 Civil Mediation
- July 11-14 - Memphis, TN
- Sept. 19-22 - Memphis, TN
- July 25-28 - Nashville, TN
- Sept. 12-15 - Nashville, TN
In this issue:
Hybrid ADR – An innovative approach to dispute resolution
ADR Update
Supreme Court to rule on Expansion of Grounds for Judicial Review in Arbitration Awards…by Pat Siuta
Henning Neutral Profile
Henning’s Iron Man
Henning Neutral Update
Tom Magill, another Iron Man
Henning and Our Neutrals in the News
Hybrid ADR - An innovative approach to dispute resolution
Hybrid cars are much in the news with soaring gas prices. They provide the best attributes of two different technologies. Hybrid processes in the ADR field, MedArb, ArbMed, and Med then Arb, used frequently in California and Florida, are being used more frequently in Georgia. These hybrid ADR processes combine the benefits of mediation and arbitration. Henning neutral A. Dennis Caniglia is one of Henning’s neutrals who is actively studying hybrid ADR and pursuing its use at Henning.
“I see hybrid ADR as an innovative solution for cases, as it provides the necessary elements to enact more than one process, yet with a consequent savings of time and expense,” says Caniglia.
In ArbMed a case is first arbitrated and the resolution professional writes a decision, seals it in an envelope, and proceeds to mediation. If the case does not settle by mediation, the neutral then provides the parties with the decision that he/she has made. The arbitration decision, although typically binding, may be non-binding if the parties agree.
In MedArb the initial step is mediation. The parties agree at the outset to use a single neutral, and that if the case doesn’t settle in mediation, the matter will go to arbitration and an award would be rendered. One concern raised by putting the mediation step first is that the parties might disclose information to the resolution professional during the mediation phase that wouldn’t ordinarily be disclosed in the normal arbitration process. If this is a major concern, this problem can be overcome by agreeing to use a different dispute resolution professional for the second step in the process, a variation known as Med then Arb.
Whether arbitration or mediation is used first, these hybrid ADR options provide an innovative way to help the parties reach resolution. Some of the benefits of the hybrid approach are obvious. The parties receive an independent opinion based on a review of the evidence, which they would not receive in mediation alone. It provides the parties with a resolution professional to assist them in meaningful discussion and resolution of the issues. This could prevent an impasse, which can sometimes occur in the mediation process. The use of a single neutral reduces the cost of a case that is not settled in mediation and then taken to arbitration. The neutral is up-to-speed on the case, reducing the time needed to reach a final conclusion.
As more and more contracts contain arbitration clauses, the benefits of a hybrid process have greater significance. For instance, nursing home contracts increasingly require agreeing to an arbitration clause before admittance. Hybrid ADR provides an alternative means to honor the arbitration clause with the potential for a mutually agreed-to settlement via mediation.
The hybrid approach can also be beneficial when there is more than one defendant. It can be tailored to the resolution of degrees of fault for each defendant prior to, or after the resolution.
“Hybrid Alternative Dispute Resolution is another example of how Henning Mediation and Arbitration is developing innovative solutions to help our clients resolve disputes effectively and efficiently,” says Caniglia.
For more information on hybrid ADR processes, contact Henning.
ADR Update
Supreme Court to Decide Whether Parties May Expand Grounds for Judicial Review of Arbitration Awards
By Pat Siuta
The U.S. Supreme Court granted certiorari in Hall Street Assoc. v. Mattel, Inc. on May 29 to resolve a disagreement among the circuit courts regarding whether an arbitration agreement that provides for expanded grounds for judicial review is enforceable. Arbitration provides parties with the opportunity to resolve disputes quickly, at less cost, and with more flexibility than is possible if a case is tried before a court. While many litigators and their clients may want to avail themselves of these advantages, some are concerned about the narrow grounds for court review of an arbitrator’s award contained in the Federal Arbitration Act (FAA). These grounds do not include errors of law made by the arbitrator. Some parties, including those in Hall v. Mattel, have drafted arbitration agreements that broaden the grounds for judicial review of an arbitrator’s award to include errors of law as well as other grounds. Reversing a position it had taken several years earlier, the Ninth Circuit Court of Appeals held in Hall v. Mattel that the FAA precludes a federal court from enforcing an arbitration agreement that provides for more expansive judicial review of an arbitration award than that provided for in the FAA. The Ninth Circuit noted that expanded judicial review would weaken the benefits of arbitration, rendering informal arbitration a prelude to a time-consuming judicial review process. The Tenth Circuit has joined the Ninth Circuit in holding that expanded judicial review undermines public policy under the FAA, finding that it undercuts the independence of arbitration and weakens the distinction between arbitration and adjudication. Taking an opposing position, the First, Third, Fourth, Fifth and Sixth Circuits have enforced agreements containing expanded judicial review of arbitration awards, reasoning that the purpose of the FAA was to enforce the parties’ agreement as to its terms. The circuit courts’ disagreement about the validity of such provisions has caused difficulty for businesses that have arbitration agreements that apply nationwide. The Supreme Court has agreed to resolve the uncertainty over whether parties can agree to judicial review of an arbitration award beyond those grounds specified in the FAA.
Henning’s Iron Man
Many people in the Atlanta legal community may think of Nisbet S. (Ken) Kendrick, as just one of the godfathers of the Georgia mediation community. But behind the mediator is a man with a list of unusual hobbies and interests.
For example, pursuing his interest in politics, Kendrick took time off to be state coordinator for the Ross Perot petition drive and presidential campaign in 1992.
When asked to describe what he does in his spare time, he calls it a “checkered recreational past.” He’s right. Does he golf? “I play three to four times a year and I do it so badly, I couldn’t call it a hobby,” he chuckles.
Kendrick’s idea of physical activity is a bit more strenuous. He has participated in triathlons – not just any triathlon but the IronMan Triathlon® – and not just once, but five times. His last triathlon was as recent as 2002. Triathlons, of course, can involve running over 26 miles, biking 112 miles and swimming 2.4 miles. He can’t count how many dozens of shorter races he’s run.
Kendrick’s primary physical activities these days are backpacking and kayaking. A Georgia native, Kendrick can often be found kayaking in the North Georgia mountains for relaxation. Asked if he’s in good shape, the 55-year-old modestly laughs, “not as good as I used to be. Training for the Iron Man was grueling.”
Last summer Kendrick spent three weeks hiking and sea kayaking in the San Juan Islands in Washington State. Accompanying him was his entire family: wife Bambi; son Harris, 24, a history major at the University of Minnesota; and daughter Meredith, 23, who recently graduated from Salem College in Winston-Salem, North Carolina and will be starting graduate school at the University of Virginia working toward a career in high school counseling.
Kendrick and his wife of 27 years met under unusual circumstances. She was his boss. During college, he worked part-time at a psychiatric hospital and Bambi was a charge nurse at the facility.
A magna cum laude undergraduate at the University of Georgia, Kendrick received his law degree from UGA as well and hung out his shingle as a solo practitioner. Later, while working at Johnson & Montgomery, a judge ordered one of the firm’s large complex cases that Kendrick was not working on, to mediation. If mediation could not settle the case, it would proceed to trial. However, the judge ruled that no attorney involved in a possible trial could participate in the mediation, so Kendrick stepped in. “After five days, we settled the case. I loved it,” he says. “I was hooked. So I attended the Harvard Law School Program of Instruction in Mediation.” On his return, Kendrick approached the Georgia Bar Association about chartering a Dispute Resolution section. “Ed Henning of Henning Mediation and Arbitration, my partner, Sid Johnson, and I talked Jack Etheridge into being the first chair of the section.” Kendrick became the third chair of the section, following Ed Henning.
But wait! We haven’t finished with those unusual hobbies. Kendrick is also an oenophile. His personal wine cellar contains 400 bottles. His favorites are the Italian Barolos – which go well with another hobby – cooking. Perhaps if you’re fortunate, you’ll share one of his bottles with his 15-layer lasagna – made with noodles he makes himself!
Henning Neutral Update
Another Iron Man at Henning is Tom Magill, whom we profiled in April 2006. Tom has been on a phenomenal journey since that profile. In August, a small tumor was found at the base of his tongue. Additional tests revealed he also had kidney cancer.
A grueling series of treatments followed. First, the kidney cancer was attacked through laparoscopic surgery. The kidney was removed and it was discovered that the tumor was encapsulated. Had it not been removed when it was, Magill would have been given only 6-9 months to live. Following surgery, Magill was put on a feeding tube while the oral cancer was attacked with chemo and radiation therapy. He had chemo treatments every Tuesday and radiation every day Monday through Friday, because, he laughs, “cancer only grows during the week”. As expected, the result of all this was a temporary loss of the ability to swallow. Speech therapy ensued to learn to swallow again. Three weeks ago, Tom had another PET scan and his doctor pronounced him cancer-free. He’s back to working full time since May.
“Of course, you learn what’s valuable and to love what you’ve got when this happens,” says Magill. “If you spend any time in a cancer treatment center you see how debilitating and ruthless a disease it is and you see people with such sprit and enthusiasm fighting it - and the people who work there are saints. I’m very grateful that I only had what I had. I’m very grateful for, and I was surprised by, the volume of email and cards of support I received from people, some of whom I barely knew. It meant a lot.”
Henning and Our Neutrals in the News
Terrence Lee Croft received an Award for Distinguished Service from the Atlanta Bar Association for spearheading the successful Fellows of the Atlanta Bar Foundation program, which raised over $250,000 for the foundation. In June, Croft performed in COURTHOUSE LINE VII: LAWST, an original musical written, directed and performed by 60 lawyers and judges in the Atlanta Bard Association of the Atlanta Bar. Also in June, Croft will represent Atlanta at the Board of Governors’ meeting of the State Bar of Georgia, held in Ponte Vedra, Florida.
Ken Kendrick recently authored a chapter in a book titled ADR Client Strategies published by Aspatore Books. The publisher targets its publications to “C” level management (CEO, COO, CFO, etc.). Noting that only a very small number of litigated civil cases are resolved through trial, the chapter discusses designing strategies by considering that the most likely outcome of a law suit will be a settlement, not a trial. The article provides suggestions from a practicing neutral as to how cases can be managed to encourage effective settlements, as well as trials.
For more information, please visit www.henningmediation.com,
email or phone (770) 955-2252 or (800) 843-6050
Fax: (770) 955-2494
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