Mediation Lessons from the Dominion-Fox Settlement

Kyle-Beth Hilfer recently appeared on the Mediator in the Middle podcast. She discussed with two other mediators how mediation lessons from the $787.5 Million settlement in the Dominion v Fox News dispute. Here are some of the topics Kyle-Beth discussed:

Why does mediation timing matter?

The Judge was imploring them to settle that. That’s a very strong word, right? Imploring. He wasn’t urging. He wasn’t suggesting. He was imploring. That in and of itself, suggests we need help. We’re right at the door. We’re on the courtroom steps. The slide deck is being loaded for opening statements. If you combine that timing with the deluge of media attention involved with this case, there was a strong impetus to get a mediator involved. Thats’s one of the most important mediation lessons from this case. Timing matters.

What unique opportunity does mediation offer?

Among the mediation lessons here is to consider what makes mediation communication different from other communications between disputants. Dominion and Fox were highly informed clients. In many cases, however, settlement negotiations  go on between attorneys without the full attention of the clients. Perhaps the attorney calls her client and says, “They offered you $1.2 million, and you wanted Ten. Of course, that’s too far off.” Settlement negotiations then often end. But does the client really understand how the other side came up with the $1.2 million offer when they reject it out of hand? They may not. Why mediate? This is the one time you may hear directly from the other side. Once you hear the other side’s position in the courtroom, they are speaking to the jury or to the judge. The position will be outlined to persuade and not to create opportunities for agreement. Mediation offers everybody a unique opportunity to listen. The role I play as mediation is to ask all of the questions, review every angle, and present something the lawyers may not have considered with fresh eyes.

What is the role of an apology in commercial mediation?

Fox did not make a full-throated apology. It was carefully crafted, but there was enough in there for Dominion to vindicate itself. In commercial mediation, apologies may not be on the table, but other equitable types of relief often are. That’s where the mediator has great creativity to assist in molding an acceptable outcome. In addition, the timing is really important for those other intangible non-monetary requests. If the mediation happens too early, those non-monetary requests may not seem as important. Either way, non-monetary relief, such as an apology, has an important role to play in mediation.

Is a mediation successful even if there is no settlement?

It may be. Most cases do settle before trial. But mediations have to occur at the right time in the course of a dispute to create the right framework for settlement. Not every mediation is meant to create settlement, but hopefully the parties come away learning something and understanding their options. They may be in a better position to create a settlement agreement down the road.  Mediation should not force both sides to come away a little unhappy. That’s a myth. Instead, both sides should feel they made the most educated decisions they could. That might be paying out money that you did not expect to, or it might be refusing to settle. In either case, the mediation allows the parties to make the most educated decisions for themselves. My role is not to force a settlement. It’s to make sure every stone’s been turned. It’s not to tell the parties what to do. It’s to help the parties realize the underlying issues and the value or lack of value, depending on the facts,  of a potential resolution that they might not otherwise achieve. This is perhaps the most important of the mediation lessons. It is important for parties to understand that the goal for the mediation is to learn and make the best choices–whether that be to settle or not.

To see the full podcast, click here.

To learn how Kyle-Beth Hilfer suggests advocates prepare for mediation, click here and here.

To learn more about hiring Kyle-Beth Hilfer as a mediator, click here or contact us.