Miles Mediation & Arbitration Services

ATLANTA OFFICE:
(678) 320-9118

SAVANNAH OFFICE:
(912) 417-2879

ATHENS OFFICE:
(678)-320-9118

January 25, 2018 No Comments

by Roy Paul, Esq.

The mediation of estate cases is particularly likely to involve close and intensely emotional relationships so as to make the mediation of such cases very challenging. Often, disputes arise among siblings or between parents and children. While the core issues may seem to focus on money or control, perceived personal slights going back years can boil to the surface. Mediation allows the parties the opportunity not only to avoid or end litigation, but to also find a way forward that can at least begin to heal fractured relationships.

Common Factors in Estate Disputes

Many estate disputes arise in probate court where one party undertakes to propound a particular will. Other interested parties may take the position that the decedent was not competent to make the will at issue or that the will was the product of undue influence. This is particularly likely to occur when the decedent has changed his or her estate plan to favor a new spouse or one of several siblings. Many estate plans involve trusts so that fiduciary obligations are owed not only by the personal representative of the estate, but by one or more trustees. The personal representative(s) and the trustee or trustees may or may not be the same person. There may be issues concerning joint bank accounts or the change of beneficiary designations prior to death. Actions taken prior to death under powers of attorney may also be at issue and there can be a cause of action for breach of fiduciary duty directed at the personal representative even if the challenged actions took place prior to the appointment of the personal representative. See Greenway v. Hamilton, 280 Ga. 652, 631 S.E.2d 689 (2006). Regardless of the form of conveyance, the theme is often that the decedent would not on their own have favored the recipient claiming the benefit and, instead, really intended for an alternative family member to be the beneficiary.

The Importance of Procedural Issues

Procedural issues are important in reaching a successful mediated agreement. Under O.C.G.A. § 53-5-25, the heirs and beneficiaries may enter into a settlement agreement admitting a will to probate, but providing for a disposition of property of the estate other than as provided in the will. Where all parties interested in an estate are legally competent to consent, it may not be necessary to seek Probate Court approval under O.C.G.A. § 53-5-25. See Leone Hall Price Foundation v. Baker, 276 Ga. 318, 577 S.E.2d 779 (2003). Where an agreement does not comport with O.C.G.A. § 53-5-25, its validity is governed by the rules applicable to all contracts, including the fundamental rule that only those parties to the agreement are bound by it. Special care must be taken to protect minors or incompetent parties through the appointment of a guardian or guardian ad litem. A judgment or agreement entered without the appointment of a needed guardian ad litem could be void or voidable. Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969); See Collins v. Collins, 217 Ga. 143, 121 S.E.2d 18 (1961); Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938); Burnett v. Summerlin 110 Ga. 349, 35 S.E. 655 (1900); Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006). It is important for the parties and mediator to make sure that all interested parties are at the table and properly represented. In Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004) the Court made it clear that there is generally no attorney-client relationship between the heirs of the estate and the attorney retained by the estate administrator. While the estate may or may not ultimately pay the lawyer’s fee, the lawyer’s client is the administrator, not the estate. Heirs or beneficiaries may need separate representation. If a guardian ad litem is necessary to reach a binding resolution, the guardian ad litem should participate in the mediation.

Achieving Success at an Estate Mediation

Getting all of the interested parties to the table so that a final binding resolution of all issues can be reached is critical. Careful consideration of the mechanics of final resolution ahead of time is also essential. The parties and mediator need to consider in advance whether a guardian ad litem needs to be appointed and to participate, whether all necessary parties are at the table and properly represented and whether Court approval under O.C.G.A. § 53-5-25 is contemplated. It may be necessary as part of a mediated agreement to seek reformation, modification or termination of a trust. See O.C.G.A. § 53-12-60 et seq. If a trust is to be affected by a settlement, the relevant trustees should be involved in the mediation and consideration must be given as to how to effectuate any settlement terms that impact an existing trust. The mediator should also attempt to find out as much as possible about the personal dynamics among the parties before the mediation begins so that the mediator can be as prepared as possible to deal with the inevitable emotional component.

 

January 19, 2018 No Comments

This has been an eye-opening year for me as a mediator and trainer. I have been mediating and training mediators for over three decades and, once again, I am humbled by how much there is to learn, how important the lessons are and how powerful, relevant and malleable the process of mediation is.

I joined Miles Mediation & Arbitration in September of 2016 and conducted the first mediator training classes at Miles in Atlanta and Savannah in 2017. Simultaneously, I shifted my practice to exclusively private mediation and left the world of community and court-connected mediation. Hence, I found myself standing at a fork-in-the-road where community mediation meets private mediation.

Private mediation began its own history in Georgia in the early 80s. Today, there are attorneys whose full-time and lucrative practice is mediation and arbitration. When I first told fellow attorneys that I was a mediator in the 1980’s, I often was the butt of jokes, such as the time one attorney asked if he got a massage with the mediation. How far we have come.

What hasn’t changed over my career? The process of mediation has withstood the test of time, attorneys and culture. The portions of my training describing the flow, the tools and the terminology has remained consistent (although I am constantly improving upon my teaching methods). The confidentiality of mediation remains vital and protected. The importance of clear, workable and enforceable terms in a written agreement is still critical to providing parties with lasting closure of any dispute. The people who complete training and become effective mediators are still full of personality, tenacious problem solvers, great communicators and instinctive students of human nature.

What has changed illuminates that “fork-in-the-road” I referenced earlier.

Mediator Styles

I used to train mediators to be strictly “facilitative” which means focusing on the process and carefully avoiding offering opinions on the strengths and weaknesses of the parties’ cases. As my own mediation practice matured, I shifted my training to include multiple skill sets including transformative, facilitative and evaluative techniques. One mediator may be transformative with one party or at one stage of a mediation but that same mediation may shift to facilitative or evaluative with a different party or at a different stage in the mediation. I have learned, and I now teach, that mediators need to be able to adapt to the nature of the dispute, the personalities in the room, the needs of the parties and expectations of both parties and attorneys.

Court Systems and Litigation

Court systems have become overwhelmed with numbers of cases and under-supported with public funds. As resources shrink, the cost of litigation has risen and the frequency of trials has decreased exponentially. The need for mediation, both private and court-referred, has never been greater. A legal system in which trials are an extravagant rarity requires a different skill sets from litigators. Lawyers must be competent negotiators and must prepare their clients and cases for both settlement and possible trial.  When I was in law school, negotiation wasn’t taught and mediation wasn’t mentioned. Hence, I believe with more passion than ever that every attorney should complete mediator training because all attorneys need to be able to have difficult conversations, negotiate with their own clients and other attorneys and anticipate and resolve conflicts. 

Mixed Training Classes

Miles training classes have been filled with both private and volunteer [community] mediators, with lawyers and non-lawyers, with diversity of age, experience and culture. This mix of people and purpose keeps us focused on what is important and unchangeable about mediation: the complexity of fairness, the effectiveness of empowering parties, the de-escalation and movement inspired by active listening, and the ultimate need to find solutions and write good agreements. I believe mediation is best taught in an interactive, challenging, real and hands-on experience rather than lecture. I love to watch trainees with different experiences and goals struggle, learn, grow and re-examine with each other and through role plays, heated discussions and practice, practice, practice. Can you tell I love what I do?

As private mediation is growing, so must community mediation. Mediators need to remain a cohesive profession protective of the essence of mediation. As I stand at this fork-in-the-road where community meets private mediation, I know and feel the pressures on both. Just as private mediators must protect fairness and neutrality at the risk of marketability, community mediators need to understand and meet the expectations of attorneys and courts without risking neutrality and affordability. Nothing worthwhile in life is easy, and the future holds many worthy challenges. Here’s to another decade of learning!

For more information about the next Civil Mediation Training Course at Miles, click here.

 

 

 

January 15, 2018 No Comments

In remembrance of Martin Luther King Jr. and the 50th anniversary of his assassination, each quarter we plan to share reflections on how King’s philosophies have influenced conflict resolution practices. We begin with messages from our mediators Bianca Motley Broom, Esq. and Stephen McKinney, Esq.

 

 

 

 

Mediator Bianca Motley Broom, Esq.

 

“Peaceful resolution of conflict was a cornerstone of Dr. King’s life. From leading the Montgomery bus boycott to opposing the Vietnam war and supporting striking sanitation workers in Memphis, he led Americans and inspired countless others around the globe through his shining examples of nonviolent protest.

While what we do on a daily basis as mediators does not have nearly as large of an impact, we all walk the path Dr. King forged as we seek to bring resolution to parties – often when they believe there is no hope for a solution without conflict. My colleagues and I are inspired daily by Dr. King’s life and his impact. We strive to show people there is a better way to resolve differences – one that brings people together instead of pushing them further apart.”

 

 

 

Mediator Stephen McKinney, Esq.

Mediator Stephen McKinney, Esq.

 

 

“There is a keen sense in which dispute resolution has become synonymous with compromise – taking half a loaf, equally shared pain/unhappiness.  In fact, accusations of bad faith, or even moral failure, are all too frequently visited upon any disputing party unwilling to repeatedly concede for the sole purpose of disposing of conflict.

Compromise has its place to be sure, but Dr. Martin Luther King, Jr. modeled a brand of moral courage that is willing to locate, articulate and insist upon the hard boundaries required by justice.  There are times when it is conflict, not its compromised resolution, that is the moral imperative.  “True peace”, Dr. King reminded, is not merely the absence of tension: it is the presence of justice.”

January 15, 2018 No Comments
Miles Athens Mediators

We are pleased to announce the opening of our office in Athens, Georgia.  Our full-time mediators based in this office are Craig Avery, Esq., Burke Johnson, Esq., and Andrew Marshall, Esq.  Founder John Miles, Esq. is also available in Athens, upon request.

Our Athens-based mediators handle cases of all types and sizes, including complex disputes in the following areas:

  • Business
  • Contracts
  • Commercial
  • Personal Injury
  • Wrongful Death
  • Traumatic Brain Injury
  • Medical Malpractice
  • Professional Negligence
  • Automobile
  • Trucking Liability
  • Premises Liability
  • Product Liability
  • Construction
  • Insurance Coverage
  • ERISA
  • Elder Care
  • Probate and Estate

Our Athens-based mediators are available to travel throughout metro Athens and beyond.

 

To schedule a mediation, please call 678-320-9118, or click here.

 

January 12, 2018 No Comments

by Matt Thiry, Esq.

The parties have retained counsel, a lawsuit has been filed, and the parties are intertwined in what will likely be a costly and time-consuming battle where even the winner loses to some degree.  If this battle could have ended before it began, would it not have been worth at least an effort?  If time, money, and relationships could have been preserved, wouldn’t that have been a better business decision?  Business contracts provide an opportunity for the parties to provide a means to mediate any disputes before those disputes result in litigation.

The Benefits of Pre-Litigation Mediation

Inserting a provision into business contracts requiring the parties to mediate prior to filing a lawsuit or initiating an arbitration proceeding is a proactive measure that can be taken by businesses to find a resolution to the dispute before the dispute becomes public.  Moreover, pre-litigation mediation provides an opportunity for the parties to preserve their ongoing business relationship, while litigation usually results in irreparable fractures to these relationships.  Mediation provides an opportunity for businesses to have control in the outcome of the dispute without waiving their rights to pursue subsequent litigation in the event resolution is not obtained.  Even if the mediation does not successfully resolve the entire dispute, time and money can be saved through narrowing the contested issues, while giving the parties the opportunity to gauge the level of interest in engaging in litigation.

Given the benefits pre-litigation mediation can provide to businesses, why isn’t it more popular among those without a contractual requirement to mediate? This can be attributed to several factors; however, the most easily identifiable reason is perception.  Requesting pre-litigation mediation when not required by the contract can be perceived as weakness by the requesting party.  While this perception is illogical, ill-informed parties may not be willing to take the risk of being perceived as weak.  However, including the mediation provision in the underlying contract takes away this perception.  Also, requesting the pre-litigation mediation required by the contract has the opposite impact.  Instead of the request being perceived as weakness, the request is a showing that your client is getting prepared to move forward with litigation.

The Value of a Pre-Litigation Mediation Provision

Consider the practical applications of a pre-litigation mediation provision in the context of the governing documents of a partnership, limited liability company, or corporation.  Litigation between business partners often results in the destruction of the business, and losses for all parties.  If the governing documents contained a pre-litigation mediation provision, the parties would be forced to consider opportunities to resolve the dispute before the business is irreparably harmed by the battles of litigation and before the matter becomes public.  This concept is no less applicable to distribution agreements, independent contractor agreements, service agreements, etc.  All types of business relationships can benefit from having an opportunity to circumvent a problem before it gets out of hand.

When inserting a mediation provision into a contract, be mindful of completeness and mechanics.  Simply stating that the parties agree to mediate before litigating, alone, is not a best practice.  As is the case with all contractual terms, it is better to be more specific as to what is being agreed to by the parties.  Consider including language addressing how a mediation demand is to be made, how a mediator will be selected, and whether the parties will provide pre-mediation position statements to the mediator.  It is ordinarily easier to agree on these concepts while the parties are forming the contractual relationship, as opposed to once a dispute has surfaced.  Also, consider whether arbitration is a better alternative for the dispute in the event mediation is not successful.

When negotiating and preparing your next business contract, consider inserting a pre-litigation mediation requirement so that your client’s interests can be best served.  After all, clients are not ordinarily averse to the idea of saving time, money, and business relationships.

 

Matt Thiry, Esq. is a registered mediator and arbitrator with significant commercial litigation experience. He mediates and arbitrates disputes in areas of business, fiduciary, real estate and probate. To book Matt for your next mediation or arbitration, please call 678-320-9118 or click here to schedule online.

November 30, 2017 No Comments

by Scott D. Delius, Esq.

Who exactly is the opposition in mediation? Should you reveal your trial strategies to the mediator? What about disclosing your settlement authority? Some concepts may seem obvious, others may not, but it is surprising how often mediating parties employ tactics that are unhelpful to their cause.

Who is the opposition in mediation?

One of the main problems in mediations is attorneys that treat the mediator as the opposition instead of an ally. During a caucus, where the mediator meets privately with one side, some lawyers (and their clients) treat the mediator as the opposition. They see the mediator as a manifestation of the other side. Too often they focus on the unreasonableness of the demand or the offer.

Mediating parties should use the mediator as a conduit of information. A good mediator will give as much information to the other side as is ethically possible. Becoming angry with a mediator because the opposing side’s number is too high or too low will not advance your client’s cause.

Always ask the mediator for his or her opinion. A good mediator should give it to you anyway, but if you haven’t heard it yet, ask the mediator’s opinion whether the other side is being unreasonable. Perhaps more importantly, does the mediator think that you are being unreasonable? This is where the mediator can be most helpful by employing strategies to bridge the gap between the demand and the settlement offer.

Another unhelpful tactic is “hiding the ball” from the mediator. While it is understandable and often necessary to exclude the mediator from attorney-client discussions, it is unwise to purposefully keep important information hidden from the mediator. This is information or evidence that may potentially tip the scales in favor of one side or another, or even win the case outright. If the mediator knows about this evidence, he or she can help determine whether and how it can best be used in the mediation to help get the case settled favorably. The opposite principle is also true. Parties should confidentially disclose information to the mediator that is damaging to their own case.

Don’t underestimate the benefit of the mediator’s neutral insight. Remember, you’ve been “living” with your case for a long time, sometimes years. You may have become too close to the case, to the point that you can’t see an important issue. You may be surprised at what you’ve overlooked.

A good example is the issue of insurance. In a personal injury mediation, that’s the entire focus of the negotiations; how much insurance money will be paid to settle the case? As attorneys, we know that the issue of insurance is never allowed in court. It is such a given that the lawyers never give the issue a second thought. But have you thought about what the plaintiff thinks?

Right or wrong, the opposing insurance company is usually the focus of the plaintiff’s attention. The plaintiff probably has thought of nothing else leading up to the mediation.

Most plaintiffs with no courtroom experience just assume that they’re going to be able to talk about the supposed injustice that they have faced due to the alleged actions or inactions of the insurance company. They assume that they’re going to be able to talk about their interactions with the insurance adjusters. They assume that the jury will know the amount of insurance coverage. They assume that the jury will hear about the perceived unfairness of the settlement negotiations leading up to trial.

Of course, the lawyers know that’s never going to happen. That’s why I make a point to tell the plaintiff this important information early during negotiations, that even the word “insurance” can never be mentioned in court. Nine times out of 10, the plaintiff has never been told this information. This revelation instantly changes the landscape for the plaintiff. I have seen this interaction lead to the settlement of many a case.

I’m not suggesting that by telling the plaintiff about the insurance issue that I’m targeting the plaintiff in order to gain an advantage for the defense. I’m simply pointing out one example of how the mediator can engage with one party in a surprisingly simple way in order to move the negotiations forward.

What about your settlement authority?

I’m about to suggest what some may believe to be an unthinkable strategy. Mediating parties should give serious consideration to revealing their settlement numbers to the mediator. That means that the defense should tell the mediator the amount of their authority, and the plaintiff should tell the mediator what they will accept to get the case settled.

Some lawyers have no idea what the number is—either they haven’t discussed it with their client or their client won’t tell them. This happens equally with plaintiffs and defendants and can make for some strange caucus sessions. Other lawyers simply can’t bring themselves to reveal this information to the mediator. After all, your settlement number is your biggest secret, isn’t it?

If both sides reveal their “bottom lines” to the mediator, one of two things will happen. The first possible outcome should be obvious. If the numbers are light years apart, and if there is little chance of bridging that chasm, the mediation will probably end early and the parties will not waste time and money.

I have personally found that there is usually a different outcome. Interestingly, when both parties are honest about their bottom lines, the numbers often overlap each other or are fairly close. Of course, a mediator is not going to reveal any numbers to the opposing parties, but I will tell both of them that their case has a good likelihood of success and it’s worthwhile to keep negotiating.

Even if only one side reveals its settlement number to the mediator, it can be tremendously helpful in getting the case settled. The mediator’s task is to hit the target, and that task is made immeasurably easier if the mediator knows where the target is.

Revealing one’s trial strategy and settlement authority to a mediator may take a tremendous leap of faith for some. If you haven’t tried it before, trust your mediator with your most closely guarded information. You may find that you will be pleasantly surprised at the results.


Mediator Scott Delius, Esq.

Scott Delius, Esq. is a mediator with Miles in Atlanta. He specializes in automobile, brain injury, business, civil rights, contracts, federal law, insurance, military personal injury, premises liability, product liability, workers compensation, and wrongful death cases. To schedule a mediation with Scott, please call 678-320-9118 or click here.

November 17, 2017 No Comments
Mediator Arbitrator Joe Murphey, Esq.

Team Leader Joseph Murphey, Esq, a mediator and arbitrator at Miles, recently shared insights about negotiation and settlement tactics at an Auto Injury Litigation seminar.  The seminar was held in Atlanta and presented by the National Business Institute, Inc. Murphey’s presentations were each available for 1.0 hour of CLE credit.

Murphey’s first presentation centered on “Negotiating with Auto Insurance Adjusters,” including techniques for going beyond an adjuster’s settlement authority and how to restart stalled negotiations. His second presentation focused on bad faith, specifically adjuster case evaluation strategies; top bad faith insurance company tactics and how to prove them; and incident scene investigation tactics and biased IMEs.

For more information about the seminar, click here.

 

 

 

November 14, 2017 No Comments

Team Leader David Nutter, Esq. will share valuable insights on mediating business and contract disputes at the annual Contract Litigation Seminar on November 17. The seminar will be held at the State Bar of Georgia headquarters and is chaired by John Larkins, Jr. and John Dalbey, both of Chilivis Cochran Larkins & Bever.  The seminar is eligible for 6 CLE hours, including 1.5 Professionalism hours and 4.5 Trial Practice hours.

See below for the seminar schedule, and for more information, click here.

WELCOME AND PROGRAM OVERVIEW
John K. Larkins, Jr.

CASE LAW DEVELOPMENTS ON CONTRACT
ESSENTIALS
Richard B. Caplan, LeClairRyan, Atlanta

LITIGATING A CONTRACTS CASE: THE VIEW
FROM THE BENCH
Hon John K. Larkins, III, United States Magistrate
Judge, Northern District of Georgia, Atlanta

THE CONTRACT DRAFTER’S GUIDE TO
CONTRACT DRAFTING
George M. Fox, Fox+Mattson, P.C., Atlanta

CYBER RISK MANAGEMENT THROUGH
VENDOR CONTRACTS
Mitzi L. Hill, Taylor English Duma LLP, Atlanta

DAMAGES AND THE USE OF EXPERTS IN A
CONTRACTS CASE
Lauren A. Warner, Chilivis Cochran Larkins & Bever
LLP, Atlanta

INTEGRATED CONTRACTS, MERGER CLAUSES
AND IMPLIED TERMS
Michael J. King, Greenberg Traurig LLP, Atlanta

HOW TO WIN YOUR CONTRACT CASE THROUGH
CROSS-EXAMINATION
Stephen T. LaBriola, Fellows LaBriola LLP, Atlanta

MEDIATING BUSINESS AND CONTRACT
DISPUTES: PROCESS, PERSPECTIVE AND
PATIENCE
David C. Nutter, Miles Mediation & Arbitration
Services LLC, Atlanta

 

 

 

November 8, 2017 No Comments
Mediator Bianca Motley Broom

Miles mediator Bianca Motley Broom was recently featured in a thoughtful Daily Report article by reporter Meredith Hobbs.
In the article, Bianca discusses her growing mediation practice and part-time role as a magistrate court judge in Fulton County.  When discussing the importance of the mediator’s role, she said:

“Typically in a trial, someone walks away unhappy. That’s where a good mediator comes in. It doesn’t take much skill to run numbers back and forth from room to room. It’s important to understand what motivates people. It’s not always money. Sometimes people are feeling ignored, disrespected or marginalized. A good mediator is going to pick up on that.”

To view the full article on the Daily Report’s website, click here.

October 25, 2017 1 Comment

We are excited to announce that Hon. Susan Forsling was named an “ADR Champion” by the National Law Journal. She is featured in the publication’s 2nd annual ADR Champions special edition, which recognizes individuals for their pioneering spirit, success, and commitment to advancing the practice of alternative dispute resolution.  Susan is the only neutral in Georgia to receive this prestigious distinction this year.

As a team leader at Miles, Susan works tirelessly to produce results for her mediation and arbitration clients. She specializes in cases involving personal injury, premises liability, medical negligence, wrongful death, professional liability, commercial contracts, local government, civil rights, and bad faith insurance claims.

“Susan is well-deserving of this award, and we’re very proud of her,” said Miles founder John Miles.  “She has become the go-to neutral at Miles for attorneys with high value and complex cases and brings the same energy and work ethic to her role as a neutral as she did when she served as a judge. Congratulations to Susan and all of the others named to this elite list.”

The National Law Journal provides in-depth national coverage for private practitioners, judges, corporate lawyers, government attorneys, and the entire legal community.

See below to view the full ADR Champions special edition, or click here.

October 24, 2017 No Comments
Mediator Jennifer Grippa, Esq.

Miles mediator & arbitrator Jennifer Grippa recently presented a CLE on “Effective Mediation Strategies” at the Atlanta-based law firm, Winter Capriola Zenner, which specializes in Commercial and Civil Litigation, Community Association Law, Corporate and Business Transactions, Real Estate and Resort and Land Development.

As Jennifer highlighted in her presentation, mediating construction cases involves far more than passing numbers.  When multiple stakeholders are involved, the interpretation of contracts, insurance policies, indemnity agreements, and third-party claims, negotiating a resolution can have its challenges, but there are strategies that parties and counsel can implement to ensure the mediation is meaningful and has the best possible chance of success.

To review the strategies Jennifer outlined in her presentation, click here. 

 


Jennifer Grippa, Esq. is a mediator and arbitrator with Miles in Atlanta.  She has over 16 years of litigation experience, specializing in construction law. To schedule a mediation or arbitration with Jennifer, please call 678-320-9118 or visit her online calendar.

October 19, 2017 No Comments
Mediation Settlement agreement

by Roy Paul, Esq.

While mediation normally is viewed as a means of avoiding or putting an efficient end to litigation, we are reminded that mediation can simply lead to additional litigation if the parties are not careful to create a clear binding agreement at mediation. The recent case of American Acad. of Gen. Physicians, Inc. et. al. v. LaPlante, 340 Ga.App. 527, 798 S.E.2d 64 (2017) shows what can happen even when the mediated agreement is read into the record in the presence of the trial judge, the parties and their counsel. Despite these measures, an appeal was taken in which the appellants argued that the trial court erred in enforcing the mediated agreement because the appellants’ agents allegedly exceeded their authority in entering into the agreement, an essential term of the agreement was void as against public policy and there was no meeting of the minds between the parties. The Court of Appeals affirmed the trial court’s enforcement of the mediated agreement finding that there existed a sufficient meeting of the minds to validate and enforce the agreement, but not without lengthy discussion and reference to the transcript of discussions that occurred between the trial court and counsel for the parties clarifying certain of the terms of the settlement.

The Court in LaPlante noted that in Georgia, settlement agreements are highly favored under the law and will be upheld whenever possible. The Court recognized, however, that:

An agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense.” Cox Broad. Corp. v. Nat’l Collegiate Athletic Ass ’n, 250 Ga. 391, 395, 297 S.E.2d 733 (1982) (citations omitted). “In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestation of assent.” Id. “When parties to a contract … know that they have different intents with respect to certain language before they enter into the contract, there can be no meeting of the minds upon the same subject matter and in the same sense and no agreement on that issue.” Id. 340 Ga.App. at 532; 798 S.E.2d at 69-70.

Parties to a mediated agreement should be mindful that a settlement agreement is no different than any other contract and should be very careful to make sure that there is a meeting of the minds on all of the essential terms. A mediated settlement agreement must meet the same requirements of formation and enforceability as any contract. If essential terms are left for additional negotiation or are not clearly stated, the opportunity to attack the enforceability of the agreement is created. While the law favors compromise, it is up to the parties to enter into a definite, certain and unambiguous agreement.

If the parties are careful to enter into an enforceable agreement, the Court of Appeals has also recently emphasized that trial courts are generally required to accept the agreement. In Olmstead Homeowners Association, Inc. v. Washington, 341 Ga.App. 524, 801 S.E.2d 320 (2017) the Court of Appeals was presented with a situation where the trial court’s final order and judgment allegedly differed from the terms of a mediated agreement. The case was remanded because it was not clear whether the trial court impermissibly modified the terms of the mediated agreement instead of enforcing it as written. On remand, the Court of Appeals left it to the trial court to determine whether the parties’ agreement was sufficiently definite, certain and unambiguous as to all material terms to be enforceable as to the parties’ final settlement.

On the arbitration side, the recent ruling in Bibb County School District v. Dallemand, 2017 WL 4126996 (9/18/2017) discussed again how the threshold issue of arbitrability is to be addressed. The Court recognized that the parties may show their clear and unmistakable intent to submit to an arbitrator the threshold issue of arbitrability by including a delegation clause in their arbitration agreement. See Rent-A-Center, West, Inc. v. Jackson, 561 U.S.63, 68-69 (2010). The Court in Dallemand emphasized that the intent must be “clear and unmistakable.” The Georgia appellate Courts have made it clear under the Georgia Arbitration Code the even claims that the underlying contract containing the arbitration clause was subject to rescission can be submitted to an arbitration with a broad arbitration clause. 


Mediator Roy PaulRoy Paul, Esq. is a mediator and arbitrator with Miles in Savannah. He has 30+ years of  combined litigation, mediation and arbitration experience. He specializes in business dissolution and business disputes, as well as estate & probate, construction, and personal injury cases. To book Roy for a mediation or arbitration, please call 912-417-2879 or click here. 

October 17, 2017 No Comments

by Burke Johnson, Esq.

When I was growing up in rural Madison County, going to Atlanta was a big deal. We would plan long in advance, and I even remember that my father would typically take the car in for an oil change and service before we headed out on that adventure.

After I finished law school, I lived and worked in Atlanta for several years. In 2001, I moved back home to Madison County. I continued working in Atlanta, and the commute became somewhat routine but increasingly difficult. As metro Atlanta expanded outward, well into Gwinnett County and even into Oconee, Jackson, Barrow and other counties near Athens, the drive became worse and worse.   A typical trip now routinely takes two hours each way during the morning and evening commute.

I have learned to “grin and bear” the commute. For most residents of northeast Georgia, however, the prospect of driving into Atlanta is often quite daunting. I’m proud Miles can now offer our clients an alternative: mediation services in Athens and all surrounding areas for clients who prefer to remain in the northeastern part of Georgia. We have a wonderful facility to accommodate multi-party cases and will soon open an additional space in Athens.

For more information or to schedule a mediation in the Athens area, please call our office at 678-320-9118.


Mediator Burke JohnsonBurke Johnson, Esq. is a mediator with Miles Mediation in Atlanta.  He has over 30 years of experience handling cases of all complexities and sizes, including  automobile; motorcycle and trucking wrecks; premises liability actions (including cases involving claims of negligent security); product liability claims; construction defect claims; commercial general liability claims; professional liability claims; insurance coverage matters; life, health and disability insurance claims; ERISA benefit claims; business and commercial disputes; elder care and adult guardianships; probate and estate litigation; and family law matters.  

To learn more about Burke or to schedule a mediation, please call 678-320-9118 or visit his online calendar.

 

September 27, 2017 No Comments

by Matthew Thiry, Esq.

Growing up playing baseball, I constantly heard coaches repeating to batters “keep your eye on the ball.”  This advice applies equally to business, and has the same consequences if not followed.  Inevitably, business clients are distracted by litigation matters, taking their eye off the ball, and, as a result, the costs can be immeasurable.   When business leaders are focused on litigation instead of generating revenue, businesses suffer.

Even in situations where good legal advice and good business practices are followed, business litigation can become an unavoidable distraction.  Business litigators frequently witness clients losing focus because of a dispute.  This could result in hard-fought battles with little to show in return, and can take a previously-successful company and plunge it into a downward spiral.  Once in this spiral, a client can quickly focus its frustration on counsel, frequently unjustly, and question its own previously approved litigation strategies.  Mediation provides an opportunity to mitigate the distraction, and a means through which the parties can resolve disputes and refocus on getting their business back to business.

Recognizing the distraction does not mean counseling businesses to run from or cave in the face of a dispute.  Instead, it means these disputes need to be managed like other business matters.  Business owners and executives like to be in control, and mediation provides them a non-binding opportunity to explore resolution while exercising that control.  Business clients often look beyond mediation, underestimate its value, and, instead, focus on other litigation strategies, such as summary judgment, which are time consuming, expensive, and often results in an appeal.

Client pressures regarding unpredictable time and costs consumed by litigation continue to rise.  In addition, all litigants are exposed to risks.  Even when the facts and law appear to support one party, there is a significant risk that a judge or jury may disagree.  In mediation, business litigators can take advantage of their own experiences and negotiation skills to help reach a resolution.  Moreover, business clients are often very sophisticated negotiators.  Why not take advantage of your combined experiences and skills, and craft a resolution that is predictable, controlled, and beneficial, as opposed to the unpredictable results waiting at trial?  There is certainly a time to carry the sword, and you may be forced to carry it.  However, a mediated resolution provides business litigators the opportunity to avail themselves to their clients as a part of the team, an advisor, and not just the muscle that is brought in to “swing for the fences.”

If mediation is viewed as an opportunity, it can resolve the dispute at hand, and can save businesses the opportunity costs that would otherwise be lost because of “taking their eye off the ball.”  If mediation is approached with the goal of managing litigation as a business matter, clients will often find that an acceptable result can be reached.  In the end, business clients want to and need to make money, and mediation provides litigators an opportunity to get clients back to that while minimizing costs and risks.


Matt Thiry, Esq. is a mediator and arbitrator with Miles in Atlanta.  He specializes business, fiduciary, real estate and probate.  To schedule a mediation or arbitration with Matt, please call 678-320-9118 or visit his online calendar.

September 26, 2017 No Comments

by Wayne Wilson, Esq.

Mediation provides the best format for all parties to present their respective positions regarding the issues
being litigated in a case – whether that be liability, damages, causation, or any other element for consideration.  Everyone sitting at the table has the opportunity to discuss, argue, inform, and communicate their thoughts and opinions, without contradiction or objection from the other side.  All facts and issues are ripe for consideration, with or without those pesky legal impediments such as relevancy or admissibility.  That is one of the beauties of the mediation process, i.e., each party having the right and ability to “have their say and tell their story.”

You will notice that what I just stated as the “great positive” of mediation – the parties right and opportunity to speak – fails to include probably the most important part of the mediation process: Listening to what is being said.  It does no good for you to present great arguments if you are not being heard.  And it does no good for the opposing party to present great arguments if you are not listening. If we fail to listen to what the other side has to say and refuse to include their comments, thoughts, opinions, suggestions, and concerns into the final evaluation of the case, we’re not likely to be able to reach a result which is a “win/win” settlement.

The Role of Active Listening

Listening is often the hardest thing to do if you want to do it right. It must be “active” rather than “passive” in nature so that the information being provided assists your decision-making in properly evaluating the case. If you don’t listen intently and with purpose to what the other side is saying, you will not be able to use the information for your benefit. Mediation provides the opportunity to hear the good, the bad, and the ugly.  And that is exactly what you need to obtain a settlement which is to your benefit. I always start a mediation by meeting with the parties separately, in a setting free of distractions, so the focus is entirely on the speaker. It is important to understand the implications of what is being said, not just the content.  And it is important for the speaker to understand, and have confidence, that I am truly listening to what he wants to say.  The main focus is on the participant’s agenda, what the person needs for others to hear.

The next step in the mediation is crucial.  This in the opening caucus, when everyone is in the same room sitting across the table from each other and, may for the first time. This is an opportunity for the parties to have a face-to-face conversation and deal with their issues and concerns. It is imperative (and not to be lost in the equation, “respectful”) to actively listen to what the other side has to say.  And this is a two-way street.

With that being said, if listening is important,  not listening and showing total disinterest is deadly to the
mediation process. An example of this (and unfortunately a true story) is a mediation in which the plaintiff was a no-nonsense, mid-50’s gentleman who was ex-military and had earned and deserved respect and had a “right to be heard.” I told him that this was the opportunity for him to have a frank and honest conversation with the representatives from the insurance company. And that he should simply look them in the eye and speak to them “man-to-man.” He did this exactly, and the insurance representative sat across the table, never made eye contact, sat disengaged, flipped his pen in the air, never acknowledged any statement or comment made, and did not even tell the plaintiff that he appreciated, understood, or even wanted to make efforts to get the case settled. It was a catastrophe. And I nearly lost all credibility as a mediator because it was my suggestion to lay it on the line.

The primary problem when “groups” begin to be dysfunctional, i.e., when the mediation process begins to suffer and fail, is that people simply don’t feel heard or respected, as in the example above.  It is likely that by the time a mediation takes place, a great deal of communication has transpired between attorneys, plaintiffs, family members, claims personnel, the court, etc., but to no avail.  Others have very likely become impatient with the repetition that not listening engenders.  They dismiss whatever is said as repeating the “same old song” or “telling the same story” and may be in the room, but not in the conversation. But at mediation, for the first time in the litigation process, the actual people who are involved and affected by the decisions being made are providing the information. Their positions are not being filtered. Suddenly, the things they have been saying for a long time have more credibility than they had before. And what they have to say has import as to the value of the case. So all either side has to do to get a better understanding of the true value of the case is listen.

Mediation Settlement

Listening to Settle

I recently mediated a case in which the plaintiff (a well-educated, older gentleman, with an excellent work history as an administrator in the county school system) was being completely honest about the injuries he sustained in an accident. He attributed most of his problems to the accident, and it was a case of clear liability. He also had an injury which prevented him from doing something he loved: refurbishing old cars. That may mean very little or nothing to some people, but it meant the world to him.  During the opening remarks by the plaintiff, the defense counsel acknowledged liability and did not try to posture by
discussing “legal” issues which were available, which would have meant little to the plaintiff. The defense counsel listened to what the plaintiff regarding the impact of his loss. More importantly, the defense counsel re-visited that issue late in the mediation–not at the plaintiff’s request, but on his own.  This act listening to what the plaintiff said hours earlier was the bridge to success.  All of the issues, facts, concerns, positions properly raised by the defense and relayed to the plaintiff throughout the mediation were recognized and understood as legitimate factors in determining the value and not just a way to lower the settlement value of the case. It was defense counsel’s listening and proper response to the plaintiff’s issues that got the case settled for a fair settlement value.

Good listening requires:

  • All decision makers in the room
  • No distractions (cell phones, etc.)
  • Full attention
  • Patience
  • A genuine effort to understand

This is a lot to do for a short period and even under the best of circumstances. But it gets results. Mediation is the best moment to get a matter resolved in a timely, cost-efficient, and reasonable fashion. The parties have absolute control. Certainty is assured. All we have to do is listen.


Mediator Wayne WilsonTeam Leader Wayne Wilson, Esq is a mediator and arbitrator with Miles in Atlanta.  He has mediated more than 1,000 cases during his tenure with Miles. He specializes primarily in Premises Liability cases; Commercial Liability claims, Automobile/Trucking, Property Damage, and Subrogation Claims.  To schedule a mediation or arbitration with Wayne, please call 678-320-9118 or visit his online calendar.

September 21, 2017 No Comments
Mediator Bianca Motley Broom

We are thrilled to announce the addition of Bianca Motley Broom, Esq. to our panel. She will mediate personal injury cases in our Atlanta office, as a member of Team Nutter.

In addition to her full-time mediation practice, Bianca will continue to serve as a part-time judge in the Magistrate Court of Fulton County. Before her appointment, she was a Senior Trial Attorney at Allstate Insurance Company for nearly five years, defending the company’s insured in personal injury cases. Prior to joining Allstate, she was an associate at Hawkins Parnell Thackston & Young, practicing toxic tort litigation. She has also served as an Assistant Prosecuting Attorney in Cuyahoga County, Ohio.

“Bianca unites tremendous professional competence with legal and judicial experience, and she has an incredible ability to bring people together under any circumstances,” said Founder John Miles. “We are delighted to have her on our panel of distinguished neutrals.”

“I am thrilled to join such an outstanding panel of mediators at Miles,” said Bianca. “Through my own litigation practice, I have had the opportunity to mediate with many wonderful neutrals across Georgia. The professionalism and skill of the mediators at Miles, however, stands out. I look forward to being able to collaborate with the best mediators in the business and working to resolve cases as quickly and efficiently as possible.”

Bianca is a registered civil mediator in Georgia. She received her Juris Doctorate from Washington University School of Law and a Bachelor of Arts in Public Policy Studies and Religion from Duke University. She is also studying for her Master of Business Administration degree from Lake Forest Graduate School of Management (LFGSM) and holds certificates in Change Management and Management Analytics from LFGSM.

Community service is a cornerstone of Bianca’s life. She currently volunteers with Children’s Healthcare of Atlanta and The Main Street Academy, where she is the immediate past president of the board. She recently participated in the United Way’s South Fulton Community Building Institute and is a member of the Atlanta Bar Association, Gate City Bar Association, National Bar Association, South Fulton Bar Association, Georgia Association for Women Lawyers,  and the Georgia Association of Black Women Attorneys.


Bianca Motley Broom, Esq. is a mediator with Miles in Atlanta. She specializes in personal injury cases. To schedule a mediation with Bianca or for more information, please call 678-320-9118 or visit her online calendar.

September 19, 2017 No Comments

Mediator Jennifer Grippa, Esq. recently authored an article, “Technology Is Changing the World of Dispute Resolution, for the Daily Report’s annual edition on Alternative Dispute Resolution (ADR).

In the article, Jennifer explores the impact technology advancements has had on the ADR industry, and the importance of having a technologically savvy mediator.

Click here to read the entire article, or below:

September 18, 2017 No Comments

Mediator Gino Brogdon, Jr., Esq. recently published the article “Five Things to Help Your Mediation Succeed,” in Daily Report’s annual edition on Alternative Dispute Resolution (ADR).

Click here to read the full article, or below:

September 15, 2017 No Comments
Mediator Gino Brogdon, Jr. and NBA Rookie of the Year Malcolm Brogdon

Mediator Gino Brogdon, Jr. recently joined with his brother NBA Rookie of the Year, Malcolm Brogdon, and his mother, Professor Jann Adams, as featured speakers at Morehouse College’s student enrichment event, Crown Forum After Dark.   The trio spoke to Morehouse students and members of the Atlanta community about the importance of goal setting, creating a legacy, the value of sacrifice, and the impact of mentorship.

Gino is a graduate of Morehouse, where his mother serves as a Professor of Psychology and Associate Provost. Malcolm Brogdon is a point guard for the Milwaukee Bucks.


Gino Brogdon, Jr., Esq. is a mediator with Miles in Atlanta. He specializes in areas of automobile and trucking, personal injury, wrongful death, civil rights, business, contracts, insurance coverage disputes, and complex medical malpractice. To schedule a mediation with Gino or for more information, please call 678-320-9118 or visit his online calendar.

 

September 8, 2017 No Comments
Mediator Jennifer Grippa, Esq.

As a featured speaker at the 36th annual Insurance Law Institute, Mediator & Arbitrator Jennifer Grippa shared four critical elements of professionalism for attorneys who want to achieve effective mediation outcomes.

Georgia Supreme Court Supreme
Court Code of Professional Responsibility:

(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution process.

1. Perspective

Good Faith

  • Put aside stereotypes and prejudgments
  • Own your risk
  • Make a true effort to build trust with the other side
  • Talk less and listen more
  • Admit you can’t predict the outcome
  • Remember your audience
  • Do what you say you’re going to do
  • Share damages documentation in advance
  • Avoid retreating from pre-mediation offers
  • Communicate non-starters in advance

 2. Preparation

  • Prepare as you would for a hearing
  • Know the facts
  • Bring all documents
  • Be prepared to discuss legal issues
  • Bring your “smoking gun”
  • Set reasonable expectations

3. Patience/Perseverance

  • Refrain from acts of impatience
  • Act as you would in court
  • Set client expectations
  • Explain that incremental progress is the norm
  • It is not how the mediation starts, but how it is finished that matters

4. Partnership

  • Partner with your mediator
  • Be honest about client control issues
  • Communicate specific expectations — let the mediator communicate those at the right time and in the best way
  • Give your mediator due regard

 


Jennifer Grippa, Esq. is a mediator and arbitrator with Miles in Atlanta.  She has over 16 years of litigation experience, specializing in construction law. To schedule a mediation or arbitration with Jennifer, please call 678-320-9118 or visit her online calendar.

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