Don Bivens: New Adventure as a Neutral

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His first trial as a new attorney was before then Superior Court Judge Sandra Day O’Connor. With such an auspicious launch it’s not surprising that attorney Don Bivens has become a name synonymous with integrity, excellence and leadership, a fact sustained by his receiving the Walter E. Craig Distinguished Service Award for “adherence to the highest principles and traditions of the legal profession and service to the public,” from the Arizona Foundation for Legal Services and Education.

However, back in his undergraduate days the young Bivens’ lofty ideals and poet’s soul were leading him in a direction that might have precluded his becoming the well-known and highly regarded legal phenomenon he is today. It was an insightful English professor with prudent advice who helped change his course.

As an intensive English major at Yale, Bivens was immersed in the intellectual and poetic aspects of literature, until experiencing an enlightening conversation.

“His name was Mark Rose and he’s a celebrated professor,” Bivens says. “One day, he held up a brown paper bag and asked, ‘Do you know what this is? It’s my lunch. Do you know why I bring my lunch in a bag? Because I can’t afford to eat out.’

“Then the professor asked Bivens, ‘Is it the literature and the poetry that attracts you or is it the analysis, and the writing? Because if it’s the analysis, I have two words – law school.’”

Law school had always been at the back of Bivens’ mind, but once thrown in with the Ph.D. English crowd he became excited about exploring that path. And certainly, a degree in English proved a solid foundation for his eventual path to the law.

“The beauty of an English degree of any kind is the depth of close reading and discipline of intelligible writing,” he says. “But when Professor Rose put the question in such stark terms, once I walked out the door, I was definitely thinking law school.”

Based on the illustrious career Bivens has carved out for himself, it was the right choice.

Today, with more than 40 years of “big law” trial and appellate experience in complex litigation, Bivens has once again made a slight adjustment to his course. “Four or five years ago I started to think about my future,” says Bivens, “and about the value I could continue to provide to clients as I matured as a lawyer. Some traits you gain only with experience – the ability to evaluate complex facts and apply the law, the ability to talk understandably with all walks of people, to listen and to make informed decisions. Those attributes in a lawyer are valued well past your fifties and sixties into later life. I would like to think these are traits that make me particularly good as a mediator and arbitrator and why I find it so enjoyable.”

Primed with a distinguished legal career as business trial lawyer, bar leader and most recently as an equity partner at Snell & Wilmer, Bivens founded his own firm dedicated to the highest level of zealous advocacy in court, and to the highest level of excellence as a mediator and arbitrator.

Don Bivens PLLC opened earlier this year in Scottsdale immediately drawing an elite clientele seeking the expert services of this seasoned professional. His reputation as a deeply committed and experienced mediator and arbitrator of complex disputes makes Bivens a top choice for parties seeking to resolve complex disputes ranging from intellectual property and licensing matters to banking and financial matters, and virtually everything in between.

EXPERTISE IN COMPLEX CASES

Don Bivens PLLC offers representation in matters of litigation, mediation, arbitration and legal consulting on Arizona’s new Rules of Professional Responsibility. There are very few lawyers who, like Bivens, have made a career in complex, commercial litigation and who have proven themselves to be among the very best across five distinct categories: intellectual property, securities litigation, bet-the-company litigation, commercial litigation, and financial 13 and banking litigation. In fact, in the last category Bivens has been named Lawyer of the Year three times.

His experience makes Bivens uniquely qualified as an ADR specialist.

“I think the skills necessary to be a good mediator are more narrowly distributed among lawyers than the skills required for litigation,” he says. “A mediator must be a good lawyer, but a mediator also needs to be a patient and careful listener. She needs to respect the dignity of each party, and to understand each party’s perspective on the facts. Then a good mediator applies her career experience and her social intuition to encourage the parties toward an equitable resolution, if possible.

“A mediator has no power to force a settlement,” he adds. “But a good mediator provides the parties her honest assessment of the case, so they too can see the pros and cons. That honest assessment may involve bringing down someone’s expectations. It may mean finding a respectful way to say, ‘I know you don’t see it that way, but is that your signature on the contract?’”

It sounds complicated and as though frequently walking a fine line, but it’s work in which Bivens takes pride and satisfaction.

“The most rewarding thing about a successful mediation is when everyone says thank you. Most people do not enjoy an adversarial process, and most appreciate a fair and reasoned resolution. Most feel a sense of release and relief in putting an anxious chapter behind them. As a mediator, when that happens, you know you’ve made a contribution to everybody in the room,” he says. “In arbitration, the dynamics are different. Generally, someone wins, and someone loses. There may be no mutual satisfaction. But if the attorneys on both sides can respect the logic and clarity of my legal analysis, and recognize that justice was served, I feel I have done my job as an arbitrator.”

UNIQUELY DRIVEN

One of the reasons for opening his new practice was the opportunity to shape a firm with a unique approach, and what sets this new firm apart is Bivens’ own experience on both sides of the courtroom.

“My background is a combination of a plaintiff and defense work, the common denominator being a tangle of multiple issues and parties,” says Bivens. “I believe my mix of experience on both sides of the ‘v’ is somewhat unique. And it helps me to empathize and understand the values in play on both sides.”

Another thing that distinguishes Bivens from his peers is how frequently and repeatedly he has been sought out for positions of leadership.

According to Bivens this all began with his election to the board of directors of the Maricopa County Bar Association, where he later served as president. Since then, he has served as State Bar President, Chair of the ABA Section of Litigation and Governor of the ABA, among many other leadership positions. He was elected three times state-wide to serve as Arizona’s State Delegate to the ABA House of Delegates. Today Bivens serves as Chair of the ABA Center for Innovation, and he continues to serve in the ABA House of Delegates as an elected delegate from the ABA Section of Litigation.

In 2021, the Arizona Supreme Court appointed Bivens to chair the Board of Non-Lawyer Legal Providers, and before that to chair the Committee on Civil Justice Reform that made the recommendations for changes in Arizona’s civil rules. Bivens is an appointed member of the Arizona Judicial Counsel and a member of the Arizona Law Institute.

The point is, Bivens has proven his value not only to the hundreds of clients he has conscientiously served, but to the Arizona legal community at large. Their trust in not only his capabilities, but wisdom, is abundantly clear.

Speaking about his election as Arizona’s state delegate to the ABA House of Delegates Bivens says, “Historically, those lawyers are pretty close to being household names in the legal community. I happened to run against a household name, great lawyer and bar leader Mark Harrison. I was fortunate to eke out a majority.

“Not exactly a mandate,” Bivens laughs. “But afterward, Mark and I became close friends and worked side-by-side on many a cause. I was very honored to serve in his stead.”

A LEGAL EDUCATION

Attending law school in Texas, Bivens was not looking to the Arizona desert where he ended up. In fact, it wasn’t even a place on the map he’d given much consideration until after he clerked for two weeks in Phoenix the summer of 1976 with a firm then named Martori, Meyer, Hendricks & Victor. The firm name morphed over the years, one iteration being Meyer, Hendricks & Bivens.

“I was pretty much focused on Washington D.C., where I had offers from several old-line firms,” Bivens says. “But then a celebrated 1970 graduate from my law school, The University of Texas at Austin, sought me out on the fringes of a cocktail party hosted by another law firm. His name was Larry Hammond. Larry pulled me aside and started talking about this new firm in Phoenix with a group of young lawyers, many of whom were U.S. Supreme Court law clerks, including Larry. He asked me if I could squeeze out some time over the summer to come to Phoenix and see for myself. I told him I had two weeks. He said, ‘great.’”

Summer 1976 found Bivens exploring Phoenix, but the allure of being scouted by esteemed D.C. firms was still on his mind. As time wound down, he knew he had a difficult decision.

“I realized that I could go to a large firm in Washington and be a trustee for something somebody else had built,” Bivens says. “Or I could come to Phoenix and be part of building a new firm in a city that itself was growing every year. I chose to be part of the building process.

“From there, I grew up as a lawyer as Phoenix grew up as a city,” he says.

THE HOME FRONT

Bivens is married to Patricia Lee Refo, the immediate past president of the American Bar Association and an equity partner at Snell & Wilmer.

“We’re an ABA romance,” he says with a laugh. “Trish was practicing in Chicago at a major firm called Jenner & Block, one of the best litigation firms in the country. She was attending ABA Section of Litigation meetings nationally, and I began attending as well. We became friends over seven years.”

No one could ever accuse this deliberate and thoughtful counselor of acting impulsively. Even when Bivens did finally decide to make his move, it was as carefully constructed and executed as a persuasive legal analysis with a built-in “opt out.”

“I sent her a holiday card, which I thought offered me plausible deniability,” he explains with a sly smile. “It could have meant, ‘happy holidays how are you?’ or it could mean ‘would you like to date?’ Trish took it as the latter. Soon we had enough frequent flier miles to go to Mars.”

Married for 25 years, the couple share three grown children, two Labradors and a cat. They also share a love for travel, music and the outdoors. Bivens has called Phoenix home for nearly 45 years, building a life filled with professional success and distinguished recognition, a wide and varied network of admiring friends, and the satisfaction of knowing his legal prowess has positively impacted hundreds of clients.

Fulfilling that long ago aspiration of playing an integral role in building a firm and influencing a growing city, Bivens continues to challenge and motivate himself. Don Bivens PLLC is an overt commitment indicating Bivens will continue to be an involved, effective and dynamic member of both the legal and Phoenix communities, now expanding his practice to include service as a mediator and arbitrator.

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