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Litigation & Arbitration

Nov. 8, 2017

Daniel Ben-Zvi, Esq.

ADR Services, Inc.

Los Angeles

Business, Real Estate, Construction, Employment, Entertainment, IP, Personal Injury, Civil Rights, Estates

Daniel Ben-Zvi (pronounced BenzVee) is a panelist with ADR Services, Inc. and AAA who has mediated more than 2,000 disputes with highly successful results. He also serves as a Judge Pro Tem and arbitrator.

He is a "Diplomat" of the National Academy of Distinguished Neutrals; "Distinguished Fellow" with the International Academy of Mediators; and 1 of 32 "Power Mediators" worldwide [Hollywood Reporter].

Daniel Ben-Zvi is co-author of the book, "Inside the Minds - Alternative Dispute Resolution." He writes articles and lectures often. He has also led panels at the annual conferences of the Southern California Mediation Association on dispute resolution in the areas of business, employment, real estate, construction, personal injury, and entertainment.

Throughout 20 years as a multi-state trial lawyer, he appeared in a wide variety of bench and jury trials, mediations and arbitrations. He's admitted to the State Bars of California, New York, Washington DC, Connecticut and New Jersey.

This "warrior-turned-peacemaker" (the Daily Journal) brings a unique blend of persistence and creativity to ending bitterly fought lawsuits. Since 2004, Mr. Ben-Zvi has served as Chairman of the "City of Los Angeles Annual Mediation Awareness Week." This includes his annual, televised presentation at City Council on the status of dispute resolution in Los Angeles, together with leaders in the legal, political and mediation communities.

Mr. Ben-Zvi's guiding principle as Mediator: "The mediation opportunity should be effectively exhausted, with no stone left unturned."

Q&A with Dan Ben-Zvi, Esq.

Q: What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?
-- Paul Kiesel, Kiesel Law LLP

A: In addition to coming into mediation flexible and ready to negotiate, attorneys should be prepared to zealously argue their best law and facts. I believe an attorney, who knows their case well, can best decide whether to submit a pre-mediation brief for the Mediator's eyes only or to share it with the opposition. In the latter case, the Mediator may then be provided also with a supplemental brief or letter for the Mediator's eyes only. Also helpful are verdicts in similar cases (from the jurisdiction or courthouse in which the case will be tried) and reported settlements in similar cases. Be ready to share, for the most part, what discovery you intend to pursue if no settlement is reached, including party, witness and expert depositions. An attorney should be prepared to argue from the head and, in cases with a compelling emotional component, from the heart.

Q: Do you ever use a joint session? Ten to fifteen ago we did those with regularity. If not, why not?
-- Brian Kabateck, Kabateck Brown Kellner LLP

A: I will have a joint session if all first agree it will likely be helpful. I typically first meet with each side's counsel without their client. Then I'll meet with that counsel together with their client. If after meeting each side separately in this manner, I believe a certain type of joint session (be it everyone, or only certain sides, or only attorneys) will help maximize the chance of settlement, then I will recommend it. Only if all agree, will such a joint session then take place. Sometimes joint sessions are where the magic happens. Joint sessions can allow counsel and parties to size up the various players, speak to represented parties and decision makers, and expose unexpected common ground.

Q: What is the biggest mistake you see counsel make in mediation?
-- Lynne Hermle, Orrick

A: Attorneys should be prepared with specific terms to include in a settlement agreement or at least a memorandum of understanding intended to be enforceable under CCP 664.6. Most Mediators will have a form memorandum which can be edited to add particular terms needed for a settlement for your type of case. Counsel need to be cautious of adding unenforceable terms. Plaintiffs' attorneys often try to add a certain term -- that upon default of an installment payment, judgment shall enter for an amount higher than the balance due -- despite the likelihood of it being invalidated as an unenforceable penalty. Many attorneys find it helpful to come to mediation with a prepared draft of a settlement agreement on their laptop computer.


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