Litigation & Arbitration
Nov. 8, 2017
Jeffrey G. Benz, Esq., CEDS
Business/Commercial, Employment, Entertainment and Sports, Health Care, Insurance, Intellectual Property, International, Maritime/Admiralty, Personal Injury/Torts, Real Property, Special Master/Discovery Referee, Telecommunications
Jeffrey G. Benz, Esq., CEDS, FCIArb has experience as a litigator, in-house counsel, transactional attorney, outside counsel, and ADR neutral spanning more than two decades of practice. He also benefits from his experience as an executive decision maker and general manager. He has been the lawyer, the client, and the private judge or mediator. Mr. Benz's experience in these diverse roles affords him distinct and well-rounded perspective on the genesis of business disputes and the broad array of possible options available to resolve them, with a unique ability to connect with business owners, executives, and others, in both emerging and established businesses. His ADR career has covered areas of complex business, insurance, financial, commercial, regulatory, entertainment, sports, and technology issues.
Mr. Benz has established a track record of proven success in his ADR career. He is known for creative solutions, his high energy and unflagging persistence to drive solutions, and his sense of humor which he uses as an aid to confront difficult conversations and solve seemingly intractable problems. Mr. Benz has been widely regarded and recognized by the BBC as one of the most experienced arbitrators in the world of sports law.
Q&A with Jeffrey Benz, Esq.
Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?
-- John Hueston, Hueston Hennigan LLP
A: Yes, arbitrations can be viewed by counsel, particularly inexperienced arbitration counsel, as just another form of litigation, importing all of the aspects of litigation the parties were trying to avoid in reaching their arbitration agreement. It takes a managerial arbitrator to evaluate and allow or not allow the activity that would otherwise occur in litigation in the arbitral forum. Absent an arbitration clause addressing this issue, the arbitrator is free to structure the procedure if the parties cannot reach agreement. For example, if the parties agree on limited discovery, then in domestic cases I allow for it, in all of its forms. If the parties do not agree on it, then I have to evaluate whether it should be permitted. The parties and their counsel should be conscious of the culture of arbitration, which is a lot different than that of litigation; that is its utility as a dispute resolution tool.
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: The side that brings the most effective mediation brief is the most helpful to their cause in advance. The advocacy for the mediation starts from that submission, and many simply repeat their claims or defenses from their pleadings with little real analysis or effort to supply the mediator with enough deep information to assist the mediator in resolving the case. In addition, bringing the client is effective at showing commitment, particularly to the other side. I always engage the parties' counsel in a pre-mediation call individually to hear their side of the story and ask any questions. And effective advocates come prepared, with case documents at their fingertips, fundamental factual information about the case and their client, and with an ability to get additional information relatively quickly if needed. They also come armed with a neutrally worded form release that we can use relatively easily to close any deal.
Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?
-- Rick Richmond, Jenner & Block LLP
A: I prepare for a mediation by first asking for mediation briefs. These should not just be a recitation of their pleadings but they should tell me real information about the case, the settlement history, and what they are willing to open with, so we can get right at the matter right away when we meet in person. In addition, I call both sides separately before the mediation to try to get a better sense of their positions and where they are willing to go at least on opening. Sometimes, in commercial cases, if I am not familiar with the industry, I research the industry the matter is in so I am as up to speed as possible. As part of my preparation I obviously read the briefs, and any documents I have been given, but I also map out the issues in the case and create a list of preliminary questions I have based on what has been submitted.