| Vol. 19 | HENNING HERALD | September 2007 |
UPCOMING TRAINING DATES:
Civil Mediation
- Sept 26-29 - Atlanta, GA
- Oct 31, Nov 1-3 - Atlanta, GA
- Dec 12-15 - Atlanta, GA
Arbitration
- Sept 25 - Atlanta, GA
- Oct 23 - Atlanta, GA
- Nov 15 - Atlanta, GA
- Dec 19 - Atlanta, GA
Mediation Observation
- Sept 29 & 30 - Atlanta, GA
- Nov 3 & 4 - Atlanta, GA
- Dec 15 & 16 - Atlanta, GA
Rule 31 Civil Mediation
- Nov 28-30 - Memphis, TN
- Nov 7-10 - Nashville, TN
- Dec 5-8 - Nashville, TN
In this issue:
Unusual uses of ADR
More than Just Personal Injury and Contracts
Henning Offers Free CLE & CE Seminars
ADR Update/News from the Courthouse
Supreme Court Clarifies How to Prove Manifest Disregard In Arbitration…by Pat Siuta
Henning Neutral Profile
The Quiltmaker's Gift
Henning and Our Neutrals in the News
Unusual Uses of ADR
More than Just Personal Injury and Contracts
Typically mediation and arbitration are viewed as methods to address situations that would lead to civil litigation. However, trained mediators, including Henning neutrals are increasingly involved in situations that go beyond the standard cases a mediator might see.
Henning neutral Terrence Lee Croft recently received an urgent call after midnight from the Alpharetta police department requesting his help in attempting to negotiate the surrender of a homeowner to a police swat team that had surrounded his home. The homeowner's wife, who was not in the home, had told officers that Croft was the only person her husband would trust in this serious and potentially life-threatening situation. Croft spent the rest of the night and early morning hours assisting the authorities. Finally, after daybreak, the homeowner asked for Croft. Croft called the homeowner on his cell phone, while simultaneously talking on another phone with the captain of the assault team. Croft persuaded the homeowner to surrender to the authorities just before they executed an armed invasion of the home. As a result, the homeowner's life was spared. He is now in jail, awaiting disposition of the charges against him, which arose from an argument with a neighbor rummaging through the homeowner's trash.
Other Henning mediators have also been involved with cases that go beyond the typical contract dispute or personal injury case. Henning neutral Pat Siuta recently mediated a case involving withdrawal of life support assistance for a comatose patient. As was the case in the Terry Schiavo case, which garnered national attention, the disabled person's spouse and parent were on opposite sides of the issue. The case involved many of the same issues raised in the Schiavo case, including whether the patient was able to communicate. Emotions were very strong on each side and the parties were extremely hostile to each other. Siuta was able to assist the parties in resolving their dispute by giving them plenty of time to express those emotions in private sessions, finding common interests, and helping the parties become more realistic about what could be accomplished.
An issue of Tennessee ADR News revealed that some judges are using ADR increasingly in criminal cases. Cases involving vandalism, assault, even attempted murder, have been referred to ADR in Lawrence County. Judge Patti McGuire consults with an ADR professional while court is in session to determine if a given case is appropriate for mediation.
“(The Judge is) very concerned with families,” said Mid South Mediation Services Lawrence County Coordinator Dave Boyd. “She tries first to figure out the cause of the family conflict and how best to restore the family after one of these episodes.”
The attempted murder case was one of the more difficult cases to mediate. Setting up the mediation itself was a challenge. It took eight phone calls before the four parties – the victim, his girlfriend, his sister and the sister’s husband (the accused offender) – could agree on a time.
Mary Ellen Bowen, executive director of Mid South Mediation Services, a volunteer organization, joined Boyd in the mediation.
Initially, the victim’s story seemed credible to Boyd, a former police officer with 29 years experience. The victim, brother-in-law of the accused, said the family didn’t like him because he recently had been released from prison. The attempted murder case was the result of a drive-by shooting that left bullet holes in his car’s glass, the victim charged. The brother-in-law strongly denied any involvement.
Eventually, Boyd and Bowen began to see a pattern of apparent interference by the victim’s mother in the lives of the victim, his sister and her husband. “The parties reported that the mother pits them against each other, and they all say they fight most of the time,” said Bowen.
In writing the contract, the brother agreed to limit his drinking – and to refrain from alcohol entirely when the family is together. All agreed they would try to talk things out first, and call the mediator if they have problems. All four also agreed to attend an anger management class. “By the end of the session they were getting along pretty well,” Boyd said, “and they were amazed that they were able to communicate for over an hour without fighting.” On the feedback forms, all four said they were “Very Satisfied” with the mediation.
This mediation was such a success, in fact, that one week later the whole family took a vacation in Florida together, paid for by the victim’s family. Boyd spoke to them after they returned from the vacation and they reported they were getting along “better than ever”.
However, the case did have an unexpected ending. A month later, the case, which had been continued in order to give mediation a chance, was on the docket for review. The accused offender was present, but the victim didn’t appear and couldn’t be located. It turned out the victim was actually in jail charged with burglary and armed robbery. The victim also admitted he had made up the drive-by-shooting story to get his brother-in-law in trouble.
“If this case hadn’t gone to mediation, it would have likely been bound over to the grand jury and the resulting trial could have ruined the family, with the resentment lasting a lifetime,” Bowen said.
Judge McGuire’s program has been praised for using ADR effectively and as it was intended. It first determines what the parties’ underlying issues are and then allows them to express their feelings with an impartial and fair mediator, resulting in the best resolution of the given situation. It’s obvious there are many situations where this approach can be successful – many of them far more emotional and gripping cases than traditional ADR cases.
Henning offers free CLE & CE Seminars at Your Office
Henning Mediation & Arbitration offers free seminars that will provide a one-hour Continuing Legal Education credit by the Georgia Bar Association. An additional hour of either Ethics or Professionalism training is offered at the same time. The seminar is approved for one hour of CE by the Georgia Insurance Department.
HMA provides an approved speaker who presents a program designed to help attorneys improve their negotiation skills in mediation. The program covers preparation for mediation, negotiating items important to the client and how to use persistence, patience and creativity to improve the mediation outcome. HMA will obtain the credits for all participants. The program is free and can be held at your facility as long as there are 15 people in attendance. For small firms and solo practitioners we also have the seminar at Henning’s facility the first Friday of every month. Please call to make a reservation. A $15 fee for the Professionalism credit will be the responsibility of the individual.
ADR Update
Supreme Court Clarifies How to Prove Manifest Disregard In Arbitration
By Pat Siuta
In 2003, the Georgia legislature added manifest disregard of the law as a ground for vacating an arbitrator’s award under the Georgia Arbitration Code. O.C.G.A. sect. 9-9-13(b)(5). Arbitrators and advocates have been eagerly waiting to see how the courts would interpret this additional ground for vacatur. A dispute arising out of a construction contract provided the Georgia Supreme Court with the opportunity to clarify how the manifest disregard standard would be applied. See Abco Builders, Inc. v. Progressive Plumbing, Inc., No. S07G0257, decided July 13, 2007. In Abco Builders, the Court reaffirmed its earlier decisions that an appellate court cannot review the sufficiency of the evidence underlying the arbitrator’s award, and that a mere error of law does not constitute manifest disregard. Rather, to prove that manifest disregard of the law has occurred, “a party wishing to have an arbitration award vacated must provide evidence of record that, not only was the correct law communicated to an arbitrator, but that the arbitrator intentionally and knowingly chose to ignore that law despite the fact that it was correct.” In most cases providing this evidence will be impossible to do, because the most common type of arbitration award (standard award) contains no rationale and no findings of fact or conclusions of law, and most arbitration proceedings are not transcribed. The Court stated that “clear evidence of the arbitrator’s intent to purposefully disregard the law is required. That is, there must be concrete evidence of this intent either in the findings of the arbitrator, if he or she chooses to make such findings, or in the transcript of the arbitration hearing, if the parties choose to have the hearing transcribed.”
The Quiltmaker’s Gift
A shopping trip with a friend resulted in a new passion for an old family tradition for Overtis Hicks (O.V.) Brantley.
Henning neutral Brantley recently retired as Fulton County Attorney. She has also served as Deputy City Attorney for the City of Atlanta and has been in private practice. However, she is known as much for her quilting talents and the outreach programs her quilting zeal has sparked, as she is for her legal talents.
The shopping trip was to a quilting store, where she bought some books, taught herself how to quilt and was hooked. She was following a path set by her maternal grandmother, Clara Ford. Brantley’s personal collection includes eight quilts made by Ford.
After making quilts as gifts for years and seeing the joy they brought, Brantley decided to bring the quilts into her office environment. In 2001, she created the first office signature quilt. Everyone in the Fulton County Attorney’s Office signed a block of the quilt. When the office space was expanded, Brantley made a quilt for each conference room and reception area. “Quilts gave our office a certain warmth,” Brantley said in an interview with the Fulton County Daily Report. “Quilts have a comforting effect on people and when they come to us, they’re troubled.”
Since her retirement, Brantley is busy on three fronts. First is daughter India, an athletic 15-year-old who still requires a chauffeur to her many athletic activities. India is active in volleyball and basketball, although she recently tore her ACL so Mom the chauffeur has been mostly driving to rehab of late.
The second front is her career in mediation. “As an attorney, I liked the mediation process. I found there is a much better result when people can sit down and work it out themselves. I hope to utilize my government experience to specialize in cases dealing with government –zoning issues, water treatment issues, police/law enforcement/misconduct issues, and constitutional torts such as excessive force, illegal search and seizure and wrongful death. – I like the overlay of elected officials and group dynamics in those cases,” says Brantley.
And last but certainly, not least is her quilting. She is founder of the Clara Ford Foundation, named for her quilting grandmother. Through the foundation (www.clarafordfoundation.org), she hopes to raise money for an African-American quilt museum in Atlanta.
At her retirement party at which the day was officially declared O.V. Brantley Day by the Fulton County Board of Commissioners, she promised one of her creations to many co-workers who hadn’t received a baby, wedding or birthday quilt from Brantley over the years – a considerable backlog that will keep her busy as well. Her quilts can take anywhere from one month to two years to complete. Of course, her retirement gift from the office was a very specially designed quilt.
To see a sampling of Brantley’s quilts, visit http://www.ovbrantleystudio.blogspot.com.Henning and Our Neutrals in the News
Henning neutrals Bill Goodman, Terrence Lee Croft and Art Glaser attended the annual meeting of the American College of Civil Trial Mediators in Colorado Springs July 15-18. Sessions and speakers included “Legislating Good Faith in Mediated Settlement Negotiations”; “Tap Into the ‘Super’ Mediator Inside of You”; and “Mediation Ethics: Neutrality Conflict, ‘Can I Say That?’”.
Terrence Lee Croft will speak at the ADR Annual Institute held at the Georgia State Bar Headquarters October 19. He will also address a meeting of lawyers and claims representatives of the Cincinnati Insurance Company November 1.
Ron Lowry has been elected to represent the Cobb Judicial Circuit for 2007-2009 as a Member of the Board of Governors of the State Bar of Georgia, the primary governing body of the Georgia Bar.
Jim Stewart will be attending “Beyond Compliance: Transforming Ethical Dilemmas Through Courageous Leadership” at the Lipscomb University Institute For Conflict Management in Nashville, TN on September 25.
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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