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Meditating on mediation

By: GREGG HERMAN//May 11, 2023//

Meditating on mediation

By: GREGG HERMAN//May 11, 2023//

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Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected].

Are there more beautiful words in the practice of law than a judge saying: “The parties have resolved their case?”

Those are the words spoken by Delaware Superior Court Judge Eric Davis in announcing that Fox News had agreed to pay Dominion Voting Systems nearly $800 million to avert a trial in the voting machine company’s lawsuit.

Dominion had sued Fox for $1.6 billion alleging that the news outlet had damaged the company’s reputation by making phony conspiracy theories that claimed its equipment switched votes from former President Donald Trump to Joe Biden.

The trial involved huge risks for both sides. For Dominion, of course, the largest risk was getting nothing if a jury verdict was adverse. Even with a favorable verdict, it would probably be years before it saw any money as the case would undoubtedly have been tied up in appeals forever. In the interim, the business would have been deprived of use of the funds which they undoubtedly can very much use.

On the other hand, Fox’s risks included the possibility of paying ungodly amounts of money (as if $800 million is not ungodly enough), more horrible publicity and the inevitable attorney fees.

Given these risks, it was a perfect case for mediation and the two sides reached out to mediator Jerry Roscoe, whom, I am proud to say, is associated with JAMS which I joined last year. Despite being on a Danube cruise with his wife someplace between Budapest and Bucharest, he agreed to take the case. He reportedly spent most of a day reading through the evidence, then engaged in telephone mediation resulting in a settlement at the 11th hour – actually, the 12th hour.

The case deviated from some of my preferred procedures for mediation, but all for good reason.  For one, I’ve recommended that mediation occur before the parties spent huge amounts of money on discovery and trial preparation. While I’m only familiar with this case through media reports, it seems to me that conducting significant discovery was essential to convincing Fox that a trial would be highly destructive, win or lose.

Another one my preferred procedures is that mediation is better in person than via zoom – and much better than by telephone. In this case, however, there was no option. A jury had been selected and the judge was itching to get going. It was now or never.

In any event, mediation was successful and, as the saying goes, nothing succeeds like success. Maybe the case would have settled without a mediator – we’ll never know. What we do know is that mediation, as it often does, can work magic. Hopefully, Roscoe won’t need a mediator himself for the inevitable divorce for ruining his wife’s vacation, but if he does, hey, I’m here!


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