the atlanta lawyer - malow mediation bar_january_2008_tal.pdf · 4 the atlanta lawyer - the...

The Atlanta Lawyer Vol. 5 No. 7 http://www.atlantabar.org January 2008

Inside This Issue:● The Role of the Advocate in Mediation – page 3● Sailing the Good Ship ADR – page 6● Women in Negotiation – page 8● Mediation Godfather Style – page 11● So, You Want to Be a Mediator? – page 12● Lawyer-Client Discord: Your Achilles Heel in Mediation – 6

ADR in Atlanta See About the Cover - page 7

2 The Atlanta Lawyer - The Official News Publication of the Atlanta Bar Association - January 2008

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President's Message

The Atlanta Lawyer - The Official News Publication of the Atlanta Bar Association - January 2008 3

W. Ray PersonsKing & Spalding LLP

Nearly all civil actions settle. The increasing number of suits settling through mediation requires lawyers to master mediation advocacy. Mediation requires compromise between parties who have opposing positions. Advocacy, on the other hand, connotes winning, the very opposite of compromise. The skills most effective for advocacy in the courtroom do not produce the most effective mediation. However, advocacy techniques can be effectively used to focus the parties toward realizing the strengths and weaknesses of their opposing views and, in turn, reaching a settlement.

This article discusses the role of the advocate in achieving success at mediation.

Preparation for Mediation

Educating the Client How you prepare your client for mediation will depend on your client’s level of experience with and knowledge about mediation. The client must be comfortable with the process because it is his or her ultimate decision to accept or reject a settlement. Make sure that your client understands the benefits of reaching a resolution in mediation, and the alternatives and comparative risks. You should discuss with the client her true interests, as opposed to her stance taken in litigation. Just like yourself—the advocate—the client will need to adjust her mindset on winning, and realize the advantages to compromise, even if concessions must be made. Also explain to your client that your role and posture differ in mediation, which requires working with the mediator and the opposing party to achieve a settlement.

Do not be afraid to let the client speak in the mediation if it appears that she could be an effective witness. Prepare the client to speak to the opposing party and respond to the mediator’s questions. Clients will often be more satisfied with the outcome if they play a part in the process. If your client is the party accused of wrongdoing, it may also help you strategically by making appropriate apologies or concessions that soften the opponent’s rigid position.

Strategy You must fully understand and recognize the strengths, weaknesses, and interests of your client’s position to achieve a desirable settlement. Evaluate the best terms you could hope to obtain for your client, and identify the worst terms your client would be willing to accept as an alternative to further litigation. Estimate the approximate range of probable verdicts should the case proceed to trial.

Before the mediation, and as it progresses, identify under which terms each party would settle. You should have a definite

goal, but the success of mediation often depends on flexibility and adjusting your position for facts that develop in the negotiations. Anticipate the interests of the opposing side, and identify areas in which your client may be willing to make concessions that your opponent would value.

Preparation The case should be prepared for mediation as if it were being prepared for trial. Not until counsel has a firm grasp on all of the factual and legal issues can a case be evaluated.

Preparation for mediation includes a thorough case file review. In order to speak intelligently, accurately, and persuasively about the facts, all depositions must be reviewed to refresh the facts each witness presents. Similarly, the damages issues should be reviewed, discussed with the client, and evaluated. Jury and verdict research must be accumulated and factored into the case evaluation.

Get organized. A case notebook should include pertinent pleadings, correspondence, exhibits, notes, case law and other authority, the mediation statement, and anything else the advocate will need to have at her fingertips. The information organized in one location may be accessed easily and quickly. The preparation involved in assembling such material in an organized format is readily apparent to the neutral and opposing counsel, who may be subtly influenced by it.

The Mediation Session

The Advocate’s Tone and Demeanor Be credible. It is essential that the advocate achieve and retain credibility with the mediator and the other parties. The advocate appears credible if she establishes a well-reasoned position supported by facts and documents. Do not speculate, particularly about the amount of damages. And do not overstate your case to the mediator or the opposing party.

Be persuasive. While it is essential for the advocate to maintain his credibility, the point of advocacy is to persuade. The result of the mediation will depend on how persuasively you advocate your client’s position in the mediation.

The key to being persuasive is to present a concise, simplified version of your case. Repeatedly point out the facts, testimony, and documents that support your case. Concrete evidence will persuade the other side more than conclusory assertions and arguments.

Be cooperative and conciliatory. Unlike in litigation, an advocate in mediation should balance competitive and cooperative approaches to the controversy. Avoid adversarial behavior that can lead to hardened positions and prevent resolution of the dispute. Do not posture extreme positions. Instead, show commitment to the mediation process by demonstrating a willingness to compromise. You will appear more reasonable if you acknowledge obvious weaknesses in your case, but follow conciliatory statements with reasons why you believe your client would ultimately prevail if the case proceeded to trial.

The Role of the Advocate in Mediation


At times, a party should be prepared to walk out, but ultimatums and threats will harden the opposing side and impede compromise. Certainly avoid insulting, humiliating, or ridiculing the opposing party. Set the tone for the mediation as an opportunity to create options.

Opening Statement Many mediators seek a written statement from the parties describing the case. This may include an explanation of the facts and the law, the various legal issues to be considered, and any relevant law and important exhibits. Professional appearance is essential in the preparation and presentation of the mediation statement. For a complex matter, include a table of contents and tabs for the specific sections. For simpler matters, a letter summarizing the facts and the legal issues suffices.

If the mediator does not use mediation statements, the first information he or she receives about the dispute comes from the opening statements of the parties in the initial joint caucus. This also may be the first time the opposing parties speak openly to each other since the litigation commenced. Speak directly to the opposing counsel and his client. In a mediation, the opposing party and his lawyer, not the mediator, are the “jury” that you must persuade.

The opening statement will be the first opportunity for the other side to see the case as you see it, with your spin and advocacy, as a judge and jury would see it. Your statement should recite the facts and include an explanation of the law that favors your position and the application of the facts to the law. This part of the statement can be presented in an objective manner designed to get your opponent’s attention.

Even if prior negotiations have been combative, when you actually present your case face-to-face, the opposing side will likely be less stubborn. Use this opportunity to connect with the opposing party. In short, a cooperative tone can and should be set early in the process.

Visual Aids The effectiveness of demonstrative aids during mediation sessions cannot be overestimated. The same types of aids that would be appealing to a jury will help show the neutral why the position advocated is correct. It does not matter whether the dispute is being tried or mediated. The goal is the same—to convince the neutral party that yours is the more reasonable position. The use of visual aids can be essential in obtaining that goal. They include calendars noting any relevant dates, charts or graphs, and enlarged photographs of scenes, equipment, or products at issue. Anything that might be used at trial to convey the theory and theme of the case to the jury can be effectively used in mediation.

Private Caucuses with the Mediator The individual caucuses with the mediator are when your preparation visibly pays off. The settlement value, verdict ranges, and character of the venire all must be communicated clearly to the mediator. Having factual statements readily at hand to rebut statements made by the opposition is highly effective advocacy and highlights the effective use of the mediation notebook. Without the notebook, or some other method of quickly scanning the file, counsel would be left either thumbing through the file for the information

sought or with some tepid response such as “I don’t think that is right, but I can’t prove it’s wrong.” It is much more effective if counsel can say, “That statement by opposing counsel is mistaken and here is the document (or deposition testimony) that contradicts it.” Such a response is not available without thorough advance preparation.

The advocate’s relationship with the mediator and frequent evaluations of the progress of the mediation are equally important. When trust exists between counsel and the neutral, that relationship can be communicated to others in the process. The trust filters into all aspects of the mediation, from the evaluation of the case by the mediator to the assessment of the dynamics in the other caucus room(s). Each move in the negotiations can be reviewed and any trends discussed and a response formulated. Your job is to give the mediator sufficient factual and legal arguments that will move the other side.

Close the Deal It is important to memorialize the agreement before adjourning the mediation. Insist on a written, signed, enforceable agreement which contains the material terms of the settlement. Without closing and confirming the deal, new ideas or terms that may impede finalizing the settlement may occur to the parties after the mediation sessions. Unless strong reasons support further evaluation- enough to risk the settlement falling apart- it is much better to obtain a signed contract before the mediation concludes.

If the Case Does Not Settle Keep the Door Open If it becomes clear that a settlement will not be reached, pave the road for further negotiations. Evaluate why the parties have not settled, and try to develop a strategy for eliminating those barriers. Address which actions might assist the parties in moving closer together. They may need to conduct limited discovery or seek a ruling from the court. Then, they may need to reevaluate and resume settlement negotiations or mediation at a later date. A good mediator will assist in helping the parties agree on a plan to continue settlement discussions and refrain from antagonistic litigation tactics that might follow an unsuccessful mediation.

Do not miss the opportunity to narrow the issues and clarify the boundaries of areas that remain in dispute. A failed mediation also allows you to assess the strengths and vulnerabilities of both sides in preparation for trial.

Conclusion The skills lawyers need in mediation are similar to those skills required for trial advocacy. As with litigation, the outcome of mediation depends on the advocate’s strategy and techniques. A mediation advocate is effective if he or she focuses the parties on the key issues and helps the opposing party recognize his weaknesses, which softens his position. Mediation advocacy requires a balance between the desire to win and the realization of the benefits of compromise.

President's Message


Justice Robert BenhamSupreme Court of Georgia

Tribute by Judge John H. Ruffin, Jr., Court of Appeals of Georgia

You are invited to attend the Atlanta Bar Association Leadership Awards Luncheon

Wednesday, February 20, 2008, 11:45 a.m., Piedmont Driving Club$35 Members, $45 Non-members

Honoring

Former Recipients: Honorable Thurbert E. Baker ▪ Governor Roy E. Barnes ▪ Honorable Dorothy T. Beasley ▪ Honorable Griffin B. Bell ▪ F. M. Bird ▪ Jerry B. Blackstock ▪ Emmet J. Bondurant ▪ Lynne Y. Borsuk ▪ Henry L. Bowden ▪ Michael J. Bowers ▪ A. Paul Cadenhead ▪ Susan A. Cahoon ▪ Honorable Charles L. Carnes ▪ Harry L. Cashin, Jr. ▪ John A. Chandler ▪ A. G. (Gus) Cleveland ▪ Hugh M. Dorsey, Jr. ▪ Honorable Walter Homer Drake, Jr. ▪ C. Wilson DuBose ▪ Michael J. Egan ▪ Honorable Orinda D. Evans ▪ Honorable Norman S. Fletcher ▪ Senator David H. Gambrell ▪ Edward T.M. Garland ▪ Steve Gottlieb ▪ Donald Lee Hollowell ▪ Phyllis J. Holmen ▪ W. Stell Huie ▪ R. William Ide, III ▪ Frank C. Jones ▪ Dorothy Yates Kirkley ▪ Hamilton Lokey ▪ Clay C. Long ▪ John T. Marshall ▪ James F. Martin ▪ Robert D. McCallum ▪ Honorable Thelma Wyatt Cummings Moore ▪ Edgar A. Neely, Jr. ▪ Mary Margaret Oliver ▪ Clifford Oxford ▪ Louis Regenstein ▪ Honorable Leah Ward Sears ▪ Honorable Marvin S. Shoob ▪ Honorable Sidney Smith ▪ Edwin L. Sterne ▪ Frank B. Strickland ▪ Larry D. Thompson ▪ Randolph Thrower ▪ W. Terence Walsh ▪ Honorable Horace T. Ward ▪ Ben L. Weinberg, Jr. ▪ J. Comer Yates ▪ Sally Quillian Yates

To register with credit cards, fax this registration form to (404) 522-0269; to register with checks, mail this form to Atlanta Bar Association, 229 Peachtree Street, NE, Atlanta, GA 30303 by February 14, 2008. For more information, contact Stefanie Aponte at (404) 832-6210 or [email protected].

Name__________________________________________________ Firm________________________________________________

Address_____________________________________________________ City___________________________ Zip_____________

Phone _____________________________ Fax ____________________________ E-mail __________________________________

Please reserve seats for the following guests:($35 members & $45 non-members)___________________________________________________________________________________________________________

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Please reserve ________ tables of 10 ($35 members & $45 non-members). Please provide the names of those sitting at each table.

Payment (Check One):

□Check □Visa □MasterCard □American Express

Credit Card No.______________________________________________________________________________________________

Leadership Awards are presented to members who inspire by their example, challenge by their deeds, and remind us all of our debt to our profession and our community.


ADR in Atlanta

Dispute resolution continues to be a maturing phenomenon in the legal community. The Atlanta Bar Association’s lawyer members are at the forefront of the emerging trend to break through barriers that prevent more satisfactory and expeditious reconciliation between conflicted parties. It is part of a societal trend that will continue to accelerate as civilization progresses to higher levels. The lawyer of today increasingly is akin to the successful sailor, directing the helm freed of unneeded constraints and in a manner designed to achieve harmony among opposing forces in order to attain important goals.

Although many of us as long ago as the early 1970’s first embarked on participation in the more recognizable alternative dispute resolution processes of mediation and arbitration, it was not until the legislature and the judicial community later recognized the distinct benefits afforded by these processes that the “ADR” revolution commenced and rapidly gained strength in numbers to become a potent force in the legal community and consequently in society. A few of us then were able to create the ADR Committee of the Atlanta Bar in 1992. Immediately it touched a chord in the

consciousness of our colleagues at the bar, and the early monthly committee meetings surprisingly swelled to over fifty Bar member attendees.

The Committee’s spirited membership began ambitious projects, some of which that first year included discipleship activities such as the publishing of an ADR Brochure designed to explain ADR’s benefits to the Bar membership and the public at large, the design and teaching of mediation techniques to an area high school, the operation of a Speaker’s Bureau to reach out to community organizations, and the sponsoring of Arbitrator Certification Training for Fulton Superior Court. The new Committee’s membership had mushroomed such that after less than two years it was made a formal Section of the Atlanta Bar in 1994 under the name “Atlanta Dispute Resolution Lawyers”. Driven by a rapidly growing membership of lawyers who realized the emergence of an effective vehicle for espousing their own deeply held principles and achieving in practice their aspirations, the new Section during its first years of 1994-96 set sail on a whirlwind voyage. To a new publication of the Bar Roster of ADR Neutrals that now appeared on the Atlanta Bar’s new home page, the Section added the creation of the Bar Mediator Reference Service. To a better ADR Brochure and expanded ADR Speaker’s Bureau, the Section added the institution of the ADR Video Rental Library. Its members now

Last September the former presidents of the Atlanta Bar Association’s Atlanta Dispute Resolution Lawyers Section gathered to have the photo taken that is shown on the cover of this issue of The Atlanta Lawyer. On that day the founder of the Section and first president of the section who served two terms from 1994 – 1996, William H. Schroder, Jr., Schroder Partners, LC, was in France and could not attend the photo session, so he had to e-mail us his photo from Saint-Tropez where he was vacationing from ADR’ing by racing with Brad Butterworth, the winning skipper of the 2007 America’s Cup, onboard developer John Williams’ 136-ft. replica of the 1937 America’s Cup winner, the mighty “Ranger”. Some lawyers are living the good life!

Bill also founded and served as the first president of the Atlanta Council of Younger Lawyers in 1974-75, as the 71st president of the Atlanta Bar Association in 1978-79, and as the Atlanta Bar Foundation president in 1995-98.

Sailing the Good Ship “ADR”By William H. Schroder, Jr.Schroder Partners, LC


ADR in Atlanta

Emory Public Interest Committeea student organization of emory university school of law

Emory University School of Law and the Emory Public Interest Committee (EPIC)invite you to join us for the

2008 EPIC Inspiration Awards Ceremony and ReceptionFebruary 12, 2008

HonoringBucky Askew, Recipient of the Lifetime Commitment to Public Service Award

John Chandler, Recipient of the Outstanding Leadership in the Public Interest AwardAimee Maxwell, Recipient of the Unsung Devotion to Those Most in Need Award

tickets: $35 minimum donationAll funds raised support Emory law students working in public sector summer jobs

For more information on ticket purchases, or to make a donation, please visit www.law.emory.edu/EPIC,or contact Sue McAvoy at [email protected] or 404.727.5503

were invited to additional high schools and formulated and presented training programs through its new Peer Mediation Group, and the new Section added more ways to assist local courts through its new Court-Annexed ADR Team. And, importantly, the Section devoted its energies to increasing the ADR skills of Bar members generally through its establishment of the Atlanta Bar College of ADR and its initial eight-part seminar series on mediation, its presentation of the exceptionally well-attended and videotaped seminars entitled “ADR Veterans’ Lawyering Strategies” and “Representing Clients in Mediation”, and its open monthly meetings with speakers that included the Chief Justice of the Supreme Court of Georgia and other judges and skilled lawyers.

A millennium change has come and gone since the 1990’s explosion onto the scene of the ADRL Section of the Atlanta Bar, yet its dramatic impact on our community continues as it pursues its high mission. The ADR processes of mediation and arbitration now are deeply entrenched in the everyday dispute resolution activities of Atlanta lawyers, some of whom have progressed into skillful experimentation with more sophisticated forms of ADR, such as Med-Arb and Arb-Med, Minitrial (with and without using a Neutral Advisor), Non-Administered Arbitration, “Baseball” Arbitration (both “Night” and “Day”), dispute review boards, and other creative ADR forms, and the development of these ADR forms into multi-tier and multi-track ADR Systems for use in a variety of complex disputes.

This author litigated exclusively during 1966-71, then got thrust into industry arbitration in the 1970’s, beginning with the

likes of an international textile patent-licensing dispute in 1971, later heading to the Middle East and Europe in construction arbitration through the mid-1970’s, and ending up as an AAA arbitrator beginning in 1979. However, binding arbitration outside certain industries here in the States in those early days over thirty years ago was officially against public policy, and similarly litigators here would not even have considered allowing some mediator to “meddle” in their cases. How times have changed! And thanks in no small part to the Atlanta Bar Association, to its members who first charted the ADR course and today still labor on it with an ever-expanding force of skilled Bar colleagues, steering like the sailor mentioned in the first paragraph above, freed of unneeded constraints and in a manner designed to better achieve the harmony among opposing forces that is necessary in order to attain important, high goals. May the ADRL continue this remarkably successful voyage.

About the CoverAccording to a recent survey performed by Peter Hart Research Associates, Inc., a majority of the public place a high priority on reducing delays and case backlogs in the court system and on expanding mediation. To this end, this issue of The Atlanta Lawyer is dedicated to the ADR process.

Shown on the cover are former presidents of the Atlanta Dispute Resolution Lawyers Section. Seated left to right are Daniel E. Gulden (2004-2005) and Phillip M. Armstrong (2003-2004). Standing left to right are Caleb Davies (2002-2003); Robert P. Wildau (1999-2000); Frank Mulcahy (2007-2008); Terrence Lee Croft (1996-1997); and Gregory R. Crochet (2000-2001).


D o w o m e n n e g o t i a t e differently from men? According to recent social science research, study after study shows the answer is a resounding “YES.” What are these differences and what are the causes? Do these differences place women at an advantage or disadvantage in negotiation? The research also shows that women negotiate differently depending on whether they are representing others, such as clients, or they are negotiating for themselves. What are those differences and what’s their cause and effect?

In today’s legal scene where far more disputes and lawsuits are concluded by direct negotiation and mediation than by trial, where transactional attorneys are constantly negotiating deals for clients, and where women outnumber men graduating from many law schools, issues about gender differences in negotiation are more important than ever. And rather than having to rely on anecdotes and individual experiences and getting bogged down with debates about beliefs, values, stereotypes, and nature v. nurture, we can now turn to accessible reports about the research in this field. Linda Babcock and Sara Laschever’s seminal work, Women Don’t Ask: Negotiation and the Gender Divide is a good place to begin to understand these differences.

Babcock, a chaired professor at Carnegie Mellon’s Heinz School of Public Policy and Management who holds a Ph.D. in economics, was first prompted to explore this issue when women graduate students told her that their male counterparts were getting to teach their own courses while they were just assigned as teaching assistants. When she asked the Dean about this, he replied that he tried to find an opportunity for any student who approached him with a good idea for a course and “More men ask. The women just don’t ask.” She then conducted a study that showed that men graduating from the school with master’s degrees were starting at salaries that averaged 7.6% or $4,000 higher than women, that 57% of men negotiated their starting salaries while only 7% of women did, and that the salary difference between those who negotiated and those who didn’t was almost exactly the difference between women’s and men’s starting salaries. So it appeared to her that the salary differences between male and female graduates were connected to women’s avoidance of negotiation.

Along with other researchers, Babcock conducted surveys, controlled experimental studies, and interviews and did an extensive review of research in the field involving people of all ages and various professions, income, and education levels, most in the U.S. and some in Europe. The research showed that:

• Men initiate negotiation over their salary and promotions far more often than women, and women seek far less than

men do even though women rate the quality of their work equal to men’s.

•In salary negotiations, the overwhelming percentage of men assume they determine their own worth and negotiate to convince the company to pay them what they are worth, while the overwhelming percentage of women believe the company determines their worth.

•In general, men initiate negotiation in all areas far more often than women do. When they do negotiate for themselves, women generally have lower goals, less self-confidence, and are more risk averse.

•Gender differences in negotiating are not dependent on age; even younger women behave differently from men in initiating negotiation and how much they seek.

•Most researchers attribute gender differences in negotiationto the way boys and girls are socialized.

•When women negotiate for others, the reluctance to initiate negotiation and tendency to seek less go away. Women negotiating for others are likely to make higher requests than men and far higher requests than when asking for themselves, while men ask for more for themselves than for others.

•In negotiation, on average women take a more cooperative approach (including sharing information), men take a more competitive approach (focus on their positions and use more confrontational bargaining techniques.) When both negotiators use a cooperative approach, the result tends to be more optimized agreements.

• When one negotiator uses a competitive approach and the other uses a cooperative approach, the resulting agreements are no better than when both negotiators use a competitive approach.

So what’s to be made of these findings? When we represent women clients in negotiation, we should be aware that it’s likely that in the past they have avoided negotiating on their own behalf and have set their demands and goals low, and this may have affected the posture of the current dispute and their behavior in the negotiation or mediation. Also, while women attorneys may have avoided opportunities to negotiate in their own careers, they are very comfortable negotiating on behalf of others and will seek as much as or more than a male attorney will for the same client. On average, male and female attorneys will also likely take different approaches to the negotiation, with men taking a more competitive approach and women a more cooperative approach. Women attorneys can actually have an advantage negotiating because the more both negotiators take a cooperative approach, the more likely it is that mutual benefits for the parties will be recognized and the resulting agreement will be optimized.

Women in Negotiation

By Joan GrafsteinJAMS Mediator & Arbitrator

ADR in Atlanta


And what about negotiations between a cooperative style negotiator, say a female attorney, and a negotiator using the competitive approach, say a male attorney? According to Deborah Kolb, Ph.D. and Judith Williams, Ph.D., in Recognizing the Shadow Negotiation: How Women Can Master the Hidden Agendas That Determine Bargaining Success, this combination can place the woman negotiator at a disadvantage. If she adopts a competitive/ confrontational style, she is more likely to get a negative reaction or provoke a backlash than a male attorney acting the same way. If she proceeds with the cooperative, communicative, interpersonal approach, she sets herself up to be shafted. Kolb and Williams recommend a new paradigm—combining forceful advocacy to establish credibility with connection with the other negotiator by engaging the other in conversation in which information can be shared and differences can surface without personal discord.

Panel discussions on women in negotiation have been springing up in many cities where attorneys experienced in negotiating disputes and transactions share practical tips on how to be more effective in negotiation and how to deal with gender specific behaviors that undermine power in negotiation. On November 29, 2007, the Women in the Profession Section of the Atlanta Bar Association presented two such panels at the Atlanta JAMS office where veteran plaintiff’s and defense litigators, mediators, and transactional and in-house attorneys explored these issues and shared skills and strategies for negotiating effectively.

ADR in Atlanta

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Friday, February 15, 2008 • 9:00 am - 4:15 pm Atlanta Bar Association Conference Room

400 International Tower, 229 Peachtree Street6 CLE hours , including 1 Professionalism and 0.5 Ethics

For more details or to register, call the Atlanta Bar at (404) 521-0781or visit www.atlantabar.org.


Board of Directors

1100 Peachtree Street • Suite 640 • Atlanta, Georgia 30309(404) 588-0900 • www.jamsadr.com • [email protected] Peachtree Street • Suite 640 • Atlanta, Georgia 30309(404) 588-0900 • www.jamsadr.com • [email protected]

Mediators and ArbitratorsIn Midtown

R. Wayne ThorpeRobert AltmanWilliam H. Boling, Jr.Andrea DoneffJoan GrafsteinRandall L. HughesF. Carlton King, Jr.Linda A. Klein

Hon. G. Conley IngramDaryll Love

William H. NeedleJames S. “Sandy” Owens, Jr.

Albert M. Pearson, IIIHon. Jonathan C. Peters

Amy TotenbergHon. Elizabeth

Glazebrook Watson

Representative Al Williams, Chair of Georgia Legislative Black Caucus and W. Ray Persons, King & Spalding and President of the Atlanta Bar Association, at the December 5, 2007, Board of Directors Holiday Reception.

Members of the 2007-2008 Board of Directors are shown left to right.First row: Amy Alcoke Quackenboss, Hunton & Williams, LLP; Vivian D. Hoard, The Hoard Law Firm, PC. Second row: La’Keitha J. Daniels, Harland Clarke; Wade H. Watson III, Caldwell & Watson; Jacquelyn H. Saylor, The Saylor Law Firm, LLP; Shayna M. Steinfeld, Steinfeld & Steinfeld, P.C.; W. Ray Persons, King & Spalding; Christopher J. McFadden; Harold E. Franklin, Jr., King & Spalding; David S. Gruskin, The Partners Group. Third row: Timothy J. Ramsey, Bodker, Ramsey, Andrews, Winograd & Wildstein, P.C.; John W. Harbin, King & Spalding; Michael B. Terry, Bondurant, Mixson & Elmore, LLP; Lynn M. Roberson, Swift Currie McGhee & Hiers; Hon. Janet F. King, U.S. District Court, Northern District of Georgia; Rita A. Sheffey, Hunton & Williams; J. Ben Shapiro, Shapiro Fussell. Last row: David N. Schaeffer, Kidd & Vaughan; Von A. DuBose, Bondurant, Mixson & Elmore, LLP; Henry (Hank) D. Fellows, Jr., Fellows La Briola, LLP; and Eric W. Anderson, Parker Hudson Rainer & Dobbs, LLP.


If you’re a fan of the Godfather, you know the most i mpor t a nt le s son Michael Corleone learned from his father was to “make him an offer he can’t refuse.” Imagine a mediation session where you actually did wield that kind of power. Without that kind of leverage, parties are not as likely to give all they’ve got, so to speak, withholding their best offer, hoping for a better result at trial. That is precisely why bringing the one with the

proverbial gun to the table can most often get the case resolved.

This is the fundamental advantage to having the assigned trial judge mediate the case. Whenever I discuss this approach with attorneys, they are initially surprised that I mediate cases assigned to my court. How can the judge remain “neutral” or “unbiased” to the point where he or she can still preside over the case, should mediation fail and the case proceed to trial? Aren’t there disadvantages of having the parties expose key aspects of their case, particularly before the judge might have ruled on substantive motions?

I don’t think you will be shocked to know that judges routinely form opinions about portions of a case before it gets to trial. Hopefully, we are good about not letting our personal feelings influence our decisions. As for revealing critical information before any rulings, this is precisely when the judge garners the most influence. Not knowing how the court might rule on critical, substantiveissues, places everyone in the same black hole. This is exactly why a judicial mediation, hosted by the presiding judge, can be extremely effective.

Should you decide to request that the presiding judge mediate your case, there are a few things I would suggest:

1. Both sides must consent and decide if the judge could continue to handle the case, should the mediation not completely resolve the case.

Some judges are not comfortable overseeing the mediation and then continuing to preside over the case. Counsel and their clients are likewise often reluctant to agree to have the presiding judge continue to preside over the case after a failed mediation. Knowing your forum is perhaps the best advice I can offer.Some judges, particularly the ones who have the patience to run a full day mediation,

might still make excellent trial judges. Making a decision like this is why your client pays you the big bucks! In any event, everyone must enter the mediation with the same understanding of what would happen, should the parties not be able to fully resolve the case.

2. All parties, as well as individuals with authority to settle the case, must be present or readily accessible.

What better way to get everyone’s attention than providing real access to the Judge. Parties, adjusters and other decision makers are often simply court observers throughout the entire pretrial process. Mediating the case with the judge allows these individuals to actually participate in the legal process. Medical malpractice or wrongful death cases are generally emotional powder kegs. Frequently parties simply want an opportunity to vent to someone whom they feel plays an important role in the litigation - someone who can lend credence to their emotional concerns. Additionally, if the judge is mediating the case and “requests” everyone’s presence, it is by far the best way to ensure everyone will actually appear, ready to do business.

3. Schedule the mediation after most discovery is completed, but before the Court has ruled on substantive motions.

This is by far the trickiest part. Yes, timing is everything! Attempting to mediate a case before these rulings puts everyone on the same, level playing field. Parties can speculate about their potential legal strengths, but the “unknowing” is enormously powerful, and that is precisely when the judge can be most effective. The “threat” of what might happen, or how the court might rule, is very often exactly what’s needed to persuade everyone to be reasonable.

I don’t know who is credited with saying that “a good settlement is when everyone is unhappy,” but I rely on this as an important guide. Having had the opportunity to mediate several cases assigned to my division has not only provided me with a chance to interact with parties and attorneys in a fundamentally different way, but I have enjoyed the challenge of attempting to move the intractable. I am, however, cognizant that it can be a lot easier for me to get parties to reach a settlement. I do hold the proverbial gun, and I feel pretty certainthat no one wants to make me mad. Don Corleone would be proud.

Mediation Godfather Style

By Judge Diane E. BessenState Court of Fulton County

ADR in Atlanta


I LIKE BEING A PEACEMAKER.

These days I spend more than 90% of my time and effort as a mediator and arbitrator. An even greater percentage of my revenues are derived from my mediation and arbitration work. I am pleased to report that I now earn more as an arbitrator and mediator than I did as a civil trial lawyer; but that wasn’t always true. Even though I have mediated and arbitrated over 2,000 cases in the last 25 years, my ADR practice started slowly and developed gradually. Only in the last decade has it become nearly “full-time.” PEACEMAKING IS IN MY FAMILY HISTORY. Mediation is now so prevalent that Georgia lawyers are supposed to discuss it with their clients (see

Specific Aspirational Ideals, (b)(1), State Bar Handbook at H-151). However, many years ago, I learned about being a mediator from my father, Thomas L. Croft, Esq. (1913-1980), a lifelong Missouri trial lawyer. My father was often selected by his colleagues at the bar to help resolve disputes among themselves, such as division of fees, partnership disputes and the like.He did this with patience and wisdom and without charge to his lawyer colleagues. When I asked him why he provided this service, my father told me that he believed that he owed it to his friends, to the profession, and to the community at large to resolve disputes among lawyers in private, rather than on the front page of the daily newspapers where cases among lawyers were always reported. Thus, I was predisposed to view private dispute resolution as a true “calling,”ratherthanmerely a job. When the Atlanta Bar Association instituted a mass “mini-mediation” program called Settlement Weekin the Fulton County Courthouse in the mid-1980s, I was enthralled. We resolved nearly 400 cases in a single week! From then on, mediation took off in Atlanta. Even though the Fulton County ADR program took a nearly 20-year detour through evaluative, non-binding arbitration by three-member panels before it embraced mediation and binding arbitration, the official use of ADR in Georgia paved the way for private individuals, mostly lawyers, to begin serving as mediators. Today we have 3,775 neutrals who have registered with the Georgia Office of Dispute Resolution, and many more who serve privately, but not on court-annexed panels.

WHY BECOME A MEDIATOR?

Today, we are overwhelmed with surveys showing that many lawyers are dissolutioned with the practice of law. Some don’t like the level of chronic incivility and contentiousness; some don’t like the very long hours of tedious preparation for fewer and fewer trials; some are ready to move on or quit or retire; some are forced to do so. Some lawyers simply aren’t doing very well in their law practice. Their health and energy levels aren’t what they once were. They are simply bored doing the same old things, day-after-day. Some lawyers think they would be more successful as a

peacemaker than a warrior. Some relish the idea of working with no staff and little overhead. They have visions of financial sugarplums dancing in their heads. They believe they are experienced (or is that just “old”?). They think they know what cases are “worth” or what they were worth back when they used to try their cases. They have many acquaintances at the bar whom they think would jump at the opportunity to use them as a mediator. Sometimes they forget that those whom they know, also know them. They think mediation looks easy. It appears to involve short hours. They don’t see the mediator doing homework or other detailed preparation. They think sitting at the head of the table involves less stress than sitting on one side or the other. They perceive that there are no collection problems involved in being a mediator. And visions of financial sugarplums dance in their heads.

THE REALITY OF BUILDING AND MAINTAINING A MEDIATION PRACTICE.

Conducting a mediation is hard work. The parties are often impatient while the mediator is caucusing with the other side. They only see the mediator working part of the time. In fact, the mediator is working all the time. A real mediation session takes a long time. Mediations usually start at 9 or 10 in the morning and often last all day. Sometimes they go late into the evening hours. Then, if you are fortunate to have a case scheduled for the next day, you get up early and start the process all over again. In some respects, it is like being on trial, day after day after day.

Although it looks like peace work, it isn’t piece work. It is hourly work for most mediators. If you don’t work enough hours, you won’t make a living at it. It is not for the faint of heart or mind or body. It requires a high energy level without many opportunities to take a real break. There is a lot of homework and other preparation for each mediation. This includes pre-mediation caucuses, review of mediation statements and sometimes review of other pleadings, deposition transcripts and documents. Some mediators send the parties a post-mediation report in cases that were not settled at mediation, in an effort to provide direction toward a potential settlement. Diligent mediators remain available after the mediation, to assist in subsequent communications and even negotiations when necessary. A good mediator can help resolve drafting disputes that arise during the course of preparing settlement documents.

Unless you are paid in advance, you should also expect some collection problems. Lawyers who are on contingent fees will want to pay you when, and if, they get paid in the case. Defense lawyers will pass the bill on to their client or its insurance carrier, at attenuated intervals, and those clients and insurance companies will often “ride the float” for a long time.

LAWYERS HIRE MEDIATORS WHO GET CASES SETTLED.

There is a great deal of pressure on a mediator to succeed or risk the loss of future mediation business from the lawyers who use them and from their firms and colleagues as well. This is very stressful! Additionally, the parties at a mediation, particularly those who are inexperienced, are under a great deal of stress due to their adversarial positions and their financial interests in the matter. Each side believes that their opponent is the problem; and they each expect the mediator to “work a miracle” to bring the unreasonable opponent to a favorable resolution of the matter. A mediator is often abused from all sides. Each side may want to shoot the messenger. In the face of these stressful circumstances,

So, You Want to Be a Mediator?(Don’t give up your day job, yet!)

By Terrence Lee CroftKing & Croft, LLPwww.King-Croft.comExclusively Affiliated With Henning Mediation & Arbitration Services, Inc.; www.henningmediation.com

ADR in Atlanta


a good mediator must remain upbeat and encouraging. It helps to be a “professional optimist,” but it is not easy to do.

EARNING A LIVING AS A MEDIATOR.

Mediator compensation can be substantial when, and if, you are able to develop a full calendar of mediations paying you at, or above, your regular hourly or realization rates as a practicing lawyer. Until then, do not give up your day job! If your services are provided through a private mediation company, it may be entitled to a portion of the fee for its overhead and profit. This is appropriate, particularly when the company is providing scheduling services, marketing, insurance, facilities for the mediation, refreshments, food, telephones, staff, billing and collecting. A good mediation company supports a website, provides a newsletter and sends you your check on the first of each month, along with a detailed accounting. If you undertake to provide all this for yourself, or with an assistant, set aside sufficient time and financial resources to provide first rate services to the customers (the lawyers and clients who hire you) and support for a comfortable mediation. In the beginning, you may work for little or no compensation, simply to develop the necessary experience and reputation among potential users of your services. Some court annexed programs and panels have low or controlled rates or require certain pro bono mediation efforts from their members. Just as in building a law practice, building a mediation practice is a gradual process.

MARKETING TIPS.

Never forget that lawyers, particularly frequent litigators, are your most likely potential clients. Spend time with them. It makes more sense to attend litigation meetings than ADR meetings, at least for marketing your mediation practice. Most lawyers want a mediator who knows the area of law involved in the dispute, who has a good track record as a mediator (no one wants to pay you to learn how to mediate on their case), and who can persuade the other side to move. Unlike arbitration, in which each side wants a neutral predisposed in its favor, advocates in mediation want the mediator to persuade opposing counsel and parties to change their positions. Thus, the perception that you will be effective in causing the other side to change its position may be more important than the perception that you, personally, are favorable towards the side that hires you. Some advocates in mediation have yet to grasp this counter-intuitive proposition, but they are learning it through experience. Successful handling of a mediation will increase your mediation practice. When you help both sides reach a settlement, each will be more inclined to call upon you again. Your practice can grow geometrically if you are perceived as a mediator who produces settlements.

WHAT ARE THE REQUIREMENTS TO BECOME A MEDIATOR IN GEORGIA?

None, not even a law degree! However, all court annexed programs and panels require that you be registered withtheGeorgiaSupremeCourt’sCommissionOnDispute Resolution, www.gadr.org (404-463-3788). At present, the rules, which are available on the website, require a 28-hour training course for a general mediator and a 42-hour training course for domestic law mediation, plus five observations of a mediation or an equivalent practicum. The website identifies several approved training courses. A course with excellent materials and teaching is available at Henning Mediation & Arbitration Services, Inc. in Atlanta (770-955-2252). Short and long term courses are available at many educational institutions. Among the best known are Pepperdine University’s

Strauss Institute, University of Missouri-Kansas City, Harvard University, and Kennesaw State University. I urge you to attend the annual ADR Institute sponsored by ICLE. You would be well advised to join the Atlanta Dispute Resolution Lawyers Section of the Atlanta Bar Association, the Dispute Resolution Section of the State Bar of Georgia and the Dispute Resolution Section of the American Bar Association. Attending meetings with other experienced mediators will provide invaluable tips on becoming a better mediator and growing a mediation practice.

THE BOTTOM LINE.

An experienced lawyer, with plenty of litigation experience, some gray hair, and good “people skills”, who can listen and show interest and empathy, has the tools to become a successful mediator. It helps to be a quick study and know something about a large number of different areas of the law. It helps to be old and experienced enough to seem wise, and young and healthy enough to keep up the pace of vigorous negotiations for hours on end. It really helps to be well known and respected by a large number of lawyers. It could be that years of participation in bar association programs and activities could actually pay off!

I enjoy conducting mediations. It is psychologically rewarding (feels good) to be a successful peacemaker. It is gratifying to see adversaries shaking hands, and to see opposing parties occasionally hug one another, once a compromise is reached. I have never seen that happen in a courtroom after a trial!

I enjoy having a new case every day. This fast pace is challenging, intellectually and emotionally. Figuring out how to help these adversaries reach a mutual compromise, without having any real authority or power, except your force of personality and your wits, is energizing. It can be a grueling and exhausting experience to work straight through an entire day with one case, and then spend portions of that evening and the next morning preparing for another case. Too many mediations in a row, without sufficient time off, can numb your mind and reduce your effectiveness.

Attending bar meetings is a refreshing change of pace. It’s an opportunity to market your practice, too. An unwelcome break in the schedule of a full-time mediator is the last minute cancellation. These are impossible to avoid, and usually deprive the mediator of the fee he would have earned if the mediation had not cancelled. No good solution exists, until you become so popular that your clients will pay for reserving your time, whether they use it or not. But don’t hold your breath waiting for that to happen! Once your mediation practice reaches a critical mass, you may find that you can’t do justice to a part-time law practice, especially a litigation-oriented one. At that point, you may want to consider becoming a full-time mediator. But don’t ever forget your marketing. This is a rapidly developing profession, with many changes likely to occur. The number of lawyers offering their services as mediators has doubled and re-doubled in the last few years. For the entrepreneurial peacemaker, it’s a great opportunity.For the timid, conservative, halt or lame, don’t give up your day job!

Terrence Lee Croft served as chair of the Litigation Section in 1986-1987; as president of the Atlanta Bar Association in 1993-1994; as president of the Atlanta Dispute Resolutions Lawyers in 1996-1997, and as president of the Atlanta Bar Foundation from 1998-2003.

ADR in Atlanta


Atlanta Bar Association Activities

The Law School Outreach Committee hosted a Career Exploration Fair on Saturday, November 10, 2007, at Powell Goldstein LLP. Shown from left to rightare: Miriam Ostrov (Emory law student), Allison Humphrey (Office of Fulton County Attorney), Phinia Aten (Phinia Aten & Associates), Joyce Neal (Office of the Metro Conflict Defender), Mariel Risner (Georgia Law Center for the Homeless), Miechia Gulley (John Marshall law student), Derric Cowther (Crowther & Ashby, P.C.), Herbrina Sanders (Office of the Fulton County District Attorney), Rhani Lott (Emory law student), Ashleigh Bhole (Emory law student), and Nancy Forti (Emory law student). Attorney participants not pictured: Edtora Jones (Cuffie & Associates) and Dawn Jones (King & Spalding).

The Criminal Law Section conducted its monthly luncheon meeting on Wednesday, November 14, 2007, with guest speaker, B.J. Bernstein, The Bernstein Firm, PC, discussing “The Genarlow Wilson Case: The Inside Scoop.” Pictured are Section Chair, William A. Morrison, Jones Morrison & Womack PC, and B.J. Bernstein.

The Judicial Section conducted its Law Clerk’s Appreciation Luncheon on Friday, November 2, 2007, at the Capital City Club with guest speaker, David E. Nahmias, United States Attorney for the Northern District of Georgia and former law clerk for U.S. Supreme Court Justice Antonin Scalia. Pictured are Judicial Section Chair, Janet F. King, United States District Court, and David Nahmias.


Atlanta Bar Association Activities

The Sole Practitioner/ Small Firm Section conducted its monthly breakfast meeting on Thursday, November 15, 2007, with guest speaker, Wendy L. Kinney, discussing “Networking and Referral Marketing”. Pictured left to right are Section Chair, Linda T. Muir, The Saylor Law Firm; and Wendy L. Kinney.

The Estate Planning Section conducted its monthly breakfast meeting on Wednesday, November 14, 2007,with guest speaker Robert M. Morgan, Ford Bowlus Duss Morgan Kenney Safer & Hampton, PA. Pictured are Robert M. Morgan and Section Chair Julie Childs, McLain & Merritt, PC.

The Family Law Section conducted its 19th Annual luncheon honoring the Judges of the Fulton County Superior Court on November 8, 2007, with guest speaker, W. Ray Persons, Atlanta Bar Association President, King & Spalding LLP, discussing “Justice in Jeopardy.” Pictured from left are Section Chair, John L. Collar, Jr., Boyd Collar Knight, LLC; Judge Ural D. Glanville, Superior Court of Fulton County; Chief Judge Doris L. “Dee” Downs, Superior Court of Fulton County; W. Ray Persons and Judge Bensonetta Tipton Lane, Superior Court of Fulton County.


ADR in Atlanta

Terri and George King have been married for 13 years, but Georgemoved out more than two years ago, leaving Terri and their 4- and 7-year-old sons in the house in Stone Mountain. Thedivorce case has been pending almost that whole time. She claims thathe had his girlfriend on the payroll of his electrical contracting company, yet she doesn’t seem particularly bitter about it.

G e orge’s c omp a ny h a d extraordinary profits last year, paying

him more than $650,000. He acts sheepish about it, as if he’d never dreamed of making that much. Since then the construction business has gone flat, and he frittered away over $90,000 speculating ontechnology stocks. There is still a lot of cash in the bank, but nobody at the mediation table seems to have any idea how much George and Terri are going to owe in taxes. Where are these people on the greater trajectory of their lives? Terri once taught school, knows some accounting and had her own small computer service company. George made a decent income during most of their time together. He seems to know the right people in town and gets a crack at the good public sector jobs. The typical resolution would be for Terri, the lower-earning parent who is also going to have the children most of the time, to get a substantial share of the assets and future support based on both parties’ average incomes in recent years.Actually, George has made such an offer. But Terri’s lawyer is breathing righteous fire.

Terri’s attorney is sure that the husband is hiding money,and complains that, after two years of litigation, he’s still being denied various documents. Terri’s accountants have reviewed the company’s books and say thatthe business is worth “millions,” but before she’ll even talk about that issue, her lawyer wants George to agree to pay her a whopping $72,000 a year in child support and 20 years of alimonyat$54,000 annually. Surely, I thought, some good old reality-testing would at least bring these parties into the same ball park. But three times over the next four hours Terri’s attorney stomped out and his client followed, looking apologetic. Three times I went out to the parking lot after them and talked them back to the table. The fourth time she took me aside and pleaded, “just tell me what I should do”. I could never have given her the obvious answer: Get rid of thatlawyer!

The case of George and Terri has long served as an object lesson on how counsel’s failure to keep a client informed and involved in what was happening in her case insured that the mediation would fail and that she would probably fall short of her reasonable goals in the litigation. Even when cases don’t settle in mediation, the process often still succeeds in humanizing the parties in each other’s eyes and creates a mutually acceptable narrative about what happened. It also expedites early resolution by defining areas where the parties only need more information, or need to think over the implications of a new settlement offer that came up during the session. That is, most of the times whena horse reaches water, it will drink it! My experience mediating hundreds of cases over fourteen years shows that the biggest reason for failure is not hostility between the parties or counsel, but rather a breakdown in the attorney-client relationship on one side or the other. Why is this?

When first meeting a prospective client in any kind of case, the lawyer’s natural instinct is to credit and validate the client’s story and the claim for relief or entitlement stemming from it. Selling himself as the proverbial zealous advocate, the lawyer is likely to build the client’s expectations even further. Occasionally,the facts become stronger through discovery, but more often the client’s and the attorney’s assessments of the value and difficulty of the case tend to diverge as the case develops. The client’s position may solidify as he receives encouragement from well-meaning but uninformed friends, and finds it harder than expected to handle or recover from physical injury, financial loss, job termination or marital separation. Meanwhile the lawyer learns how the client’s actions contributed to the problem being litigated, and that the adverse party may have been as much a villain as a bumbler. On top of that, the witnesses who know the most about the situation refuse to be helpful to either side. The client can’t afford the cost of hiring a forensic accountant to flush out all of the financial facts. Such developments call for a difficult conversation between counsel and client long before mediation, a conversation that surprisingly doesn’t often happen the way it should. Instead, as in Terri’s case, the lawyer tries to perpetuate his original view of the case by pounding the table in thehope of diverting attention from his failure to manage his client’s expectations. Similar problems can even crop up where a party doesinvest in expert testimony to support preconceptions, for example, about the value of a business or a theory of damages. A qualified but lessexperienced expert may go beyond his original charge and become involved in preparing the case for trial, thereby losing his professional detachment. It then becomes harder for the lawyer and client to assess realistically what he has produced. And if

Lawyer-Client Discord: Your Achilles Heel in Mediation

By Robert P. Wildau NewSouth Mediation Services


the expert’s findings can’t be credibly presented at the mediation table, they are not likely to convince a jury at trial. Terri’s lawyer apparently hadn’t tied down his experts to any specific numbers, perhaps because he hadn’t gotten her agreement to spend what it would cost to do so. As a result, his client’s expectations were never lined up with what he could reasonably expect to prove, making her look foolish at the mediation. The lawyer’s impulse to overprotect the client is another problem for the relationship that shows up in mediation. A sure sign of this occurred in the King case when in caucus Terri’s lawyer said of some minor proposal by George, “I wouldn’t LET my client agree to that.” The conversation took place in Terri’s presence, but it surely sent her the wrong message, capitalizing on her sense of dependence on him. Under Georgia’s Rules of Professional Conduct, a lawyer is supposed to provide his client information that will enable her to participate intelligently in decisions concerning the objectives of the representation, of a quality “appropriate for a client who is a comprehending and responsible adult.” But that isn’t how Terri’s lawyer treated her. The role of the warrior protecting the weak and afflicted may appeal to the attorney’s self-image, but it demeans and weakens the client just when he or she needs the confidence to make hard decisions and face life after litigation has run its course.

ADR in Atlanta Terri and George King could have resolved their case in mediation that day. Instead, because of Terri’s lawyer’s extraordinarily poor performance, George withdrew a generous earlier offer and replaced it with a much smaller but still plausible proposal. However often litigants may threaten to demand more or offer less than originally proposed, I’ve hardly ever seen it done in 32 years of practice. After so many years of solemn CLE lectures proclaiming the importance of preparing for mediation, it’s hard to say why the opportunities this dispute resolution mechanism offers are still wasted in so many cases. Maybe it has something to do with mediation not being taught in law school yet frequently ordered by the courts. I suggest that not only will our mediation experiences improve when we look to the quality of our relationships with our clients. Those relationships will also be more satisfying for allinvolvedwhenlawyers are more candid, manage their expectations better, and stop trying so hard to be their heroes.

Robert Wildau served as president of the Atlanta Dispute Resolution Lawyers Section in 1999-2000.

Welcome New Members!Tricia Beckmann Emory UniversityTwana Rene Benson The Law Office of T.R. Benson, PCLisa R. Bugni Alston & Bird, LLPDennis G. Collard Kessler Schwarz & Solomiany, PCValeria Cometto Ford & Harrison, LLPPeter S. Dardi Dardi & Associats, PLLCTaylor Davis Emory UniversityArman Deganian Carlock Copeland Semler & Stair, LLPMartin Dozier Alston & Bird, LLPRobin L. Gentry Needle & Rosenberg PCJonathan R. Granade Casey Gilson PC

Jeremy C. Green J.C. Green & Associates, PCLindsay M. Haigh Haigh & Associates, LLCEric J. HansonHunton & Williams LLPA. Andre Hendrick Holland & Knight LLPAnn Shannon JacksonFulton County Probate CourtJeanne Lurie James McDonough Fish & Richardson, PCMeghan McIntee Emory UniversityDouglas E. McKay Emory UniversityBrent Meyers Carlock Copeland Semler & Stair, LLPMatthew Miller Carlock Copeland Semler & Stair, LLP

Niverca Mosley Woodward & Stern, LLCWendi Murphy BYN MellonOrlando P. Ojeda Jr.Krevolin & Horst, LLCHemant M. Piduru Krevolin & Horst, LLCReagan Sauls Weekes & Candler, LLPAndrew Strickland Emory UniversityLesley Ann Troope Fulton County OEEOJohn R. Wall Holland & Knight LLPDenise M. Walton Fulton County District Attorney’s OfficeKimberly R. Ward Holland & Knight LLP


Spanish for Legal ProfessionalsSpanish is Vital to Your CareerBy Samantha S. WardNational Speaker, www.wardspeaking.com

There has never been a better time to be a Spanish-speaking attorney. The debate regarding immigration and healthcare legislation, as well as the mortgage industry collapse, have all accentuated the need for bilingual legal assistance.

The need for Spanish-speaking bilingual employees continues to be high. The Daily Press in Newport News, VA reported that many local emergency responders and other medical personnel are taking classes to learn Spanish. Spanish is becoming essential to their job functions. The goal is not to make students fluent in the language, but rather to give them phrases [which can]assist Spanish-speakers, in the course of their everyday jobs. The local emergency responders are attending an eight week class, paid for by their employers.

Jerry Campe, Deputy Director of the National Foreign

Language Center, was recently quoted in The Wall Street Journal Online that “there is a growing awareness that studying a foreign language can help make you a lot more hirable.” The Journal [article] additionally state[s] that “for many professionals, that means investing the time and money to learn a foreign language, could pay off in terms of career advancement and salary.” Some companies are paying double to find qualified bilingual workers. The article goes on to say, “second languages, especially in the U.S. are likely to help in fields where you deal directly with buyers, such as automobile sales.”

“According to national studies, Latinos are 2.5 times more likely than whites to receive one of the infamous so-called subprime loans, that consist of low interest rates for a limited period of time that are later adjusted to the market,” says the New American Media. Many families qualified for mortgages that they could not sustain, and now face the possibility of foreclosure. The language barrier contributed to the problems already faced by these individuals, and further complicated an already complex situation. In many instances, real estate agents took advantage of individuals, particularly foreigners, whose poor credit ratings prohibited them from renting apartments.

TheLedger.com also reports that Spanish-speaking employees can potentially earn more, and that, “the job market is all but begging for bilingual candidates, and the language of Florida’s, in fact all of the United States’ fastest-growing minority is Spanish.” According to the United States Census statistics, in the past three years, Florida’s population has increased by 1.4 million people, more than one-third of them being Hispanic. “More than 81,000 Hispanics call Polk (County) home, making up 14 percent of the county’s population.” The article continues, that “from tourists to immigrants, even if they speak a functional amount of English, the people calling and coming into those offices are increasingly likely to speak another language better or more comfortably.” The ability to communicate with these individuals obviously makes the interactions more meaningful. In some cases, that second language means being able to offer a transferable skill that commands higher compensation. Riegle of Action Staffing has seen such candidates earn anywhere between 50 cents and $1 more per hour.” Being bilingual has never been as valuable a skill as it is today. Attorneys that have the ability to communicate with Spanish speaking clients, even on a cursory level, will find themselves much more prepared in the coming years. Even if you have Spanish speaking staff, never underestimate the value having this tool in your arsenal.

The Atlanta Bar Association is offering “Spanish for Legal Professionals,” a 6-CLE hour course taught by Samantha Ward, on February 15, 2008, at the offices of The Atlanta Bar Association. The course is open to both attorneys and support staff. To sign-up for Ms. Ward’s free e-zine, visit www.wardspeaking.com.

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ADR in AtlantaEstate Planning Section & CPAs Host National SpeakerBy Shari Harvey Diversified Trust

On November 8th, over 120 attorneys and CPAs gathered at the Ritz-Carlton, Buckhead, for the fourth joint program of the Estate Planning and Probate Section of the Atlanta Bar and the Estate and Financial Planning Section of the Georgia Society of CPAs. With the help of Diversified Trust Company, the two sections presented nationally known estate planning expert, Jonathan Blattmachr of Milbank, Tweed, Hadley & McCloy LLP.

Following a welcome by Hal Daughdrill, Chairman of Diversified Trust Company, Julie Childs, Chair of the Estate Planning and Probate (EP & P) Section, McLain & Merritt, PC, introduced Blattmachr. Blattmachr is a regular speaker at the Heckerling Institute on Estate Planning and was already well known to many. Blattmachr spoke on two topics: Planning for the Middle Class Client and Income Taxation of Estates and Trusts. While the subjects generally do not prompt overwhelming excitement, the speaker’s charismatic style and active engagement of his audience easily held the attention of his listeners.

Following the presentation, the attendees took advantage of the networking opportunities available while they enjoyed a sumptuous cocktail reception. Olen Earl, Treasurer of the EP & P Section, Director of Planned Giving of The Community Foundation for Greater Atlanta, particularly enjoyed the evening, as he won an iPhone which Diversified Trust gave away as an added enticement for seminar attendees to enjoy the post-seminar festivities. While the reception began promptly at 4:45 p.m., the final departures were not until 7:30 p.m., certainly suggesting that a good time was had by all.

The now annual event began in 2005 when Ben Pruett, former Atlanta Bar E P & P section chair, Bessemer Trust, suggested to his board that their section join forces with their peer section at the Georgia Society to present an upscale event which would combine high quality continuing education with a relaxed atmosphere for networking following the event. Lou Mezzullo was engaged to speak at the first such event, followed by Bob Keebler, then Natalie Choate who drew a crowd of over 180 in 2006.

While the venue may change in 2008, the format will likely be the same: a half-day CLE featuring a nationally known speaker presenting to over a hundred attorneys and CPAs whose practices include an estate planning focus. To submit suggestions for speakers and/or topics, please contact Shari Harvey at Diversified Trust Company: 770-226-5333.

“Never stir up litigation.A worse man can scarcely be found who does this....A moral tone ought to be infused into the profession which should drive such men out of it.”

AbrahamLincoln

Lincoln on ProfessionalismComing to you in 2008

A seminar on professionalismin the practice of law

based on the writings and speechesof Abraham Lincoln

Produced byThe Atlanta Bar Association

In partnership withThe Chief Justice’s Commission on Professionalism

Volunteer opportunities available

For more information, contact Mary Lynne Johnson, CLE [email protected] or 404.832.6203


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ADR in Atlanta

The Alternat ive Dispute Resolution Lawyers Section of the Atlanta Bar Association (ADRL) has partnered with The Atlanta Legal Aid Society to provide pro bono mediation services in legal aid cases. The purpose of the program is to provide fair, fast, and cost effective resolution of these disputes to benefit all parties. Atlanta Legal Aid carries a tremendous case load. Provision of pro bono mediation services through this program may allow Atlanta Legal Aid to spread its budget further and to expand its already excellent services to more people in need in our community.

Atlanta Legal Aid identif ies cases it believes are appropriate for mediation and refers those cases, with the agreement of its clients and the opposing party and counsel, to the ADRL Section’s Pro Bono Mediation Program. ADRL Section members act as pro bono mediators in those cases. The program administrators identify mediators who are a good fit for each case, match a mediator acceptable to the parties with each case, draft the standard mediation agreement, find a convenient location for the mediation, and then follow up with the participants to insure that they were satisfied with the mediation services. Mediations in these cases typically take a half day.

By Taylor Tapley DaleyNelson Mullins Riley & Scarborough

Mediation for Legal Aid Cases In 2007 - 2008, the program is being administered by ADRL Section Board members Jennifer Victor of The Victor Firm and Taylor Daly of Nelson Mullins Riley & Scarborough. Thus far, the program has recruited over twenty pro bono mediators who bring diversity and a wide range of law practice experience to the program. All program mediators have at least three years of active mediation experience and hold a current registration with the Georgia Office of Dispute Resolution. To date, Atlanta Legal Aid, its clients, opposing parties and their counsel have reported that the mediators serving on their cases were excellent and that the program aided in the resolution of their cases. Erin Shear of Atlanta Legal Aid reports: “Through this beneficial program, a disabled, senior client was able to stay on in her home. Without this program, this client would have had to endure the stress of litigation and would not have been ensured such a positive result. This mediation program is a great resource for Atlanta Legal Aid clients.”

The program can use additional volunteers. If you are interested in assisting, please go to www.atlantabar.org; Sections; Atlanta Dispute Resolution; ALAS Volunteer Form, or send a current CV, to Taylor Tapley Daly, Nelson Mullins Riley & Scarborough, 201 7th Street, NW, 17th Floor, Atlanta, GA 30363, or email same to [email protected]. Please insure that your form or CV confirms your registration with the Georgia Office of Dispute Resolution, references any languages that you speak fluently, lists any practice area specialties that you have, and notes if you have completed mediation training for domestic matters.

Taylor Tapley Daly served as President of the ADRL Section in 2005-2006.


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ADR in Atlanta

Introduction

In order to get the best possible outcome at mediation, it is critical to recognize that mediation preparation is no less important than deposition, hearing and trial preparation. The more preparation time spent with the client and educating the mediator in advance of the session, the greater the chance for success.

Preparation of client

Lawyers should not lose sight of the fact that even though they are

fluent with the mediation process, the concept is new to the client. That is why ample time should be spent with the client prior to the mediation to fully explain the process. The client’s true goals and expectations need to be covered before the mediation begins.

The preparation of your client should include explaining the purpose of the general session and the caucuses that will occur throughout the process. Your client should understand that the general session is not adversarial: you do not want to polarize the parties. The client needs to know that the caucus is the appropriate place to freely speak to the mediator in confidence. Alert the client that the caucus setting is where the mediator will be “reality testing” the case to emphasize the weaknesses of the case. Reality testing includes going through the factual and legal issues to point out potential pitfalls if the case is tried.

Tapping into the Mediator’s Role

Use the mediator to your full advantage. Keep in mind that you have been living and breathing your cases for months or years. Mediators are permitted to confer with the lawyer and/or client on a confidential basis before, during and after the mediation. Apprising the mediator of the obstacles to resolution is extremely helpful in obtaining a successful outcome at mediation.

Difficult clients or attorneys are common obstacles. Although the mediator is apt to realize the problem during the mediation, it behooves you to disclose the information upfront. It may assist the mediator in determining the best strategies to employ.

Position statements

Pre-mediation statements are extremely helpful to mediators. Such statements are usually confidential, but some mediators prefer that copies be sent to all parties. One benefit of a statement is that it can streamline the issues before the mediation. It also tends to alert the mediator to potential obstacles to settlement. In the position statement it is helpful to have a summary of the legal and factual issues, history of settlement negotiations, potential barriers to settlement and status of case. The statement should address the issues that cannot be ascertained from simply by reviewing the pleadings and discovery, for example a client with unrealistic expectations.

Rather than sending the mediator a stack of deposition transcripts, highlight or flag the key portions. One caution: do not send only selected pages as that may suggest to the mediator that harmful portions to your case have been omitted.

Be judicious in your selection of what to send the mediator. The mediator does not need your entire file. Plus, you do not want her to read it and charge you by the hour.

Who should attend the mediation?

Many times a party will indicate they will have a decision maker in person, yet the person who attends does not have full authority to settle the case. From a mediator’s perspective (and opposing counsel’s viewpoint) it is difficult to negotiate without the true decision maker physically present. A decision maker who appears by telephone is unable to fully evaluate the other side through their own eyes. He may miss out on the dynamics of the proceedings. Remember that the decision maker is not necessarily

Insights From the Mediator’s Perspective

By: Ellen MalowMalow Mediation and Arbitration, Inc.


the one who holds the purse strings, but could be a spouse, parent, etc.

General Session Approach

Remember your audience. Many attorneys present their case as if the mediator is the audience. The true audience is the opposing party’s client—not opposing counsel and not the mediator. This is your best opportunity to have a direct conversation with the decision maker, and may be the first time opposing counsel’s client gets to hear from you.

Client’s Role

If you have properly prepared for mediation, your client should be prepped to speak during the general session. Oftentimes lawyers make the mistake of instructing their clients not to make any statements. The message this tactic may communicate to the mediator and the opposing side is that your client does not make a good witness. Some of the most powerful presentations have come from clients and not the lawyers.

In one employment case that I mediated, the plaintiff was extremely articulate, well versed on the factual issues, and able to share the human side of the case without being overly emotional. The presentation was extremely powerful to the mediator and the defendant.

There are certainly instances where a client may not be as articulate or impressive, and in those instances it may be best not to have them speak in the general session. But even clients who are not especially articulate may want an opportunity to be heard. Such clients can be effective in a limited speaking role, if adequately prepared. Mediation is a chance for them to have their day in court and vent directly to the other side. On the other hand, if the parties have not yet been deposed, one must decide if the preview would be beneficial.

Value of visual aids

Visual aids can often communicate a point more effectively than words alone. Use of visual aids may show the other side that you are prepared for trial, which lends credibility to your case. Be sure that if you are using PowerPoint that you do not just read the PowerPoint rather than making direct eye contact to the decision maker. It is critical that you see the reaction to the presentation through facial expressions and body language. A very persuasive visual to use in mediation is a day-in-the-life video.

Conclusion

Adopting some of these insights may enable you to effectively use the mediation process and increase your chance of successfully resolving your case at mediation.

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ADR in Atlanta


Continuing Legal Education & Sections CalendarLawghter Is The Best Medicine with Lawyer/Humorist Sean Carter • “U. S. Supreme Court Cases You Need to Know – The Real Shock and Awe Campaign” • “A Lawpsided Review of 2007”Tuesday, January 15, 20088:30 am – 11:45 am morning session, 1:00 pm– 4:15 pm afternoon session6 CLE/1 E/1 P/0 TPCapital City Club, 7 Harris Street, Atlanta Cost: $229 for Atlanta Bar Association members and $269 for non-members. Either half-day session: $139 for Atlanta Bar Association members and $179 for non-members. Sponsored by Atlanta Bar Association CLE.

Family Law SeminarThursday, February 14, 20089:00 am – 4:00 pm6 CLE (specialty hours TBD)Location TBDCost: $169 for Family Law Section members of the Atlanta Bar Association; $179 for Atlanta Bar members but not Family Law members; $199 for non-members; $159 for legal support staff; $25 for law students. Co-sponsored by the Family Law Section and Atlanta Bar Association CLE.

Spanish for Legal ProfessionalsFriday, February 15, 20089:00 am – 4:30 pm6 CLE/0 E/0 P/0 TPAtlanta Bar Association, Suite 400, 229 Peachtree Street, AtlantaCost: $199 for Atlanta Bar members; $239 for non-members; $169 for legal support staff; $25 for law students.Sponsored by Atlanta Bar Association CLE.

Advanced Workers’ CompensationThursday, February 22, 20088:30 am – 4:30 pm6 CLE (specialty hours TBD)Capital City Club, 7 Harris Street, AtlantaCost: $169 for Workers’ Compensation Section members of the Atlanta Bar Association; $179 for other Atlanta Bar members; $199 for non-members; $139 for legal support staff; $25 for law students.Co-sponsored by the Workers’ Compensation Section and Atlanta Bar Association CLE.

Take Your Adversary to LunchThe Litigation and Business & Finance Sections’ Annual Take Your Adversary to Lunch program

will begin on February 1 and end on February 29, 2008.

Atlanta Bar Association membersareencouraged to invite an adversary (or more than one) to lunch during the month of February and then enter for a drawing of two gift cards from the Buckhead Life Group Restaurants – one is for the member and one for the member’s adversary. The drawing will take place at the Section’s breakfast meeting on March 14, 2008, at the Colonnade Restaurant. The following will be awarded:

Last Year’s winners were :

Entry Form:

Member’s Name E-mail Adversary’s Name E-mail

Restaurant Name Date of Lunch Rules:Attorneys may submit up to five entries; one for each separate lunch attended during the month of February 2008. One entry per lunch (not per adversary). Entries must be received by Friday, March 7, 2008. Incomplete or duplicate entries will be rejected.

Fax (404-522-0269) or mail to: Atlanta Bar Association, Tanya Windham, 229 Peachtree Street, Suite 400, Atlanta, GA 30303.Or go to www.atlantabar.org and enter with the form on the Litigation Section’s page.

Jim Deichert and Susan Coppedge - $200 gift cardsRobin Frazer Clark and Steve Cotter - $150 gift cards

Jim Deichert and David Leta – $100 gift cardsLisa Strauss and Warner Fox - $50 gift cards

Heavyweight Prize: Two $200 Gift CardsWelterweight Prize: Two $150 Gift Cards

Featherweight Prize: Two $100 Gift CardsLightweight Prize: Two $50 Gift Cards


Member Benefits & SponsorsThe Atlanta Bar Association wishes to thank its sponsors:

Platinum Level

Gold Level

Silver Level

MERRILLCORPORATION** Appreciat ion is extended to Merrill Corporation for their in-kind sponsorship by printing the newsletter, The Atlanta Lawyer.

Career Center – for job seekers and employers - (866) 376-0948.

Conference Calling & Webinars. Contact Susan Siubisat(973) 628-0752.

Hertz Discounts – (800) 654-2210 or hertz.com – account # CDP# 1752378.

Insurance Specialists, Inc. – discounts on your insurance needs (800) 241-7753.

Lasik Surgery discount – InView InterWave® (404) 843-3937.

Law Firm Merchant Account – a credit card program that is specifically designed for law firms and sole practitioners.(866) 376-0950.

Platinum Credit Card with Bank of America– affinity card with low fixed rate and no annual fee – (800) 441-7048 ext 21135, code VP69.

Professional Clothier – Tom James Company offers discounts for professional clothing. Contact Mark Grillo at (404) 479-9100, ext. 166.

Recycling Program – free mailing supplies for recycling ink jet and laser cartridges and cell phones – (561) 301-4060.

RPost – Registered email service – send critical e-mail messages and electronic documents with legal proof of delivery. Contact Jake Finnell at (619) 501-7177.

Thrifty Car Rental Discounts-Renter’s can earn FREE rental days if they sign up for the Blue Chip program. Discounts also available for family members. Sign up at http://www.thrifty.com/index.aspx?corpnum=004C004440

United Parcel Service – discounts on all delivery options. (800) 325-7000.

Member BenefitsThe Atlanta Bar Association is pleased to offer the following benefits.

Current Membership in the Atlanta Bar Association is required for participation in these programs.

For more information visit http://www.atlantabar.org/Members/Member Benefits.

The ATlAnTA lAwyer400 International Tower229 Peachtree Street NEAtlanta, GA 30303-1601

BOARD OF

DIRECTORSW. Ray Persons*President

Shayna M. Steinfeld*First Vice President/President-Elect

David N. Schaeffer*Second Vice President

Michael B. Terry *Secretary

Christopher J. McFadden* Treasurer Richard B. Herzog, Jr.*Immediate Past President

Thomas J. Mazziotti* ACYL President

Members at Large

Eric W. Anderson

La’ Keitha Daniels

Von A. DuBose

Henry (Hank) D. Fellows, Jr.

David S. Gruskin

John W. Harbin

Amy Alcoke Quackenboss

Timothy J. Ramsey

Lynn M. Roberson

Jacquelyn H. Saylor*

Rita A. Sheffey*

Wade H. Watson III

ABA DelegatesS. Wade Malone

W. Terence Walsh

Gate City Bar AssociationHarold E. Franklin, Jr.Gate City Bar Association President

Legal CounselMatthew W. Nichols

* Executive Committee

The Atlanta Lawyer (ISSN-04038428/UPS-018068) is published monthly by the Atlanta Bar Association, 400 International Tower, 229 Peachtree Street NE, Atlanta GA 30303-1601. The Editorial Board of The Atlanta Lawyer will consider all articles and letters submitted for publication, however it reserves the right to reject articles and letters submitted. Articles are judged on importance of topic, clarity and timeliness. The Editorial Board gives priority to articles promoting the activities of the Association and its members. The Board reserves the right to edit or rewrite an article as a condition of publication. Articles and letters may be submitted by e-mail to Byron Lomas at [email protected]. The membership is encouraged to submit letters to the editor. The Atlanta Lawyer reserves the right to edit for style, length and continuity. All letters must include the author’s name. Periodicals postage paid at Atlanta, GA. POSTMASTER: Send address changes to The Atlanta Lawyer, 400 International Tower, 229 Peachtree Street NE, Atlanta GA 30303-1601. Subscription rate: $20 for non-members, $1 of a member’s dues pays for an annual subscription.

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PAIDAtlanta, GA

EDITORIAL BOARD

Elizabeth T. BaerHon. Diane E. BessenJoseph BlyskalMichael JablonskiChristopher J. McFadden Byung J. PakJacquelyn H. SaylorEric P. SchroederRita A. SheffeyPaul ShermanIan E. SmithGregory M. Taube

W. Ray PersonsShayna M. SteinfeldDiane O’ SteenByron Lomas

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Members:

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Staff:

The Atlanta Bar Association gratefully acknowledges Merrill Corporation’s generous donation of printing The Atlanta Lawyer.

Wade H. Watson III

Happy New Year!

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