Is Mediation Legally Binding? A Look at Dominion v. Fox News

Dominion Voting Systems filed a defamation lawsuit worth $1.6 billion against Fox News. The lawsuit claims that the network propagated false allegations that the company was involved in voter fraud during the 2020 presidential election. For those of you interested in reading legal stuff, here’s the complaint.

In addition to Fox News, Dominion Voting Systems has also filed defamation lawsuits against MyPillow CEO and Trump supporter Mike Lindell, as well as lawyers Rudy Giuliani and Sidney Powell, who worked with Trump on his legal actions after the election, and networks Newsmax and OAN. All of these lawsuits are still going to trial as of the date of this article.

Dominion had to prove that the claims weren’t true, which it did when Judge Eric M. Davis decided that it was “CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”

Fox’s conduct met the “actual malice” standard, which meant that the network either had knowledge contrary to its claims or that it showed a reckless disregard for the truth.

The parties settled for a historic $787.5 million. The size of this settlement speaks volumes (pun intended).

Here in the U.S., we have this concept that lawsuits right the wrongs (at least, as much as you can in monetary damages). At the end of the trial, the judge or the jury decides how much apologizing the one side has to do.

So, for the parties to settle for that much money … that’s a very large apology. Just prior to the start of the trial, mediator Jerry Roscoe facilitated this unprecedented resolution between Fox News and Dominion … from onboard a European river cruise. If you ever wondered if COVID had any positive effect on the world, there it is. We can now settle … and have … lawsuits while on a cruise.

The manner in which Mr. Roscoe was hired was dramatic indeed. But, both parties were quietly trying to secure a deal prior to Roscoe’s arrival on the scene.

Mediation between parties, especially in a case this public, is a tough job. And despite what most people believe, mediator do not have to be attorneys: some are pastors or therapists. I’m not aware of any legal standards that are enforced by the courts, although you probably wouldn’t get a job unless you were one of the above professions.

You can have mediators with all kinds of cases: divorce, (in some states) custody, car accidents, and medical malpractice, just to name a few. And while the public now seems to be disappointed that Fox’s celebrity news anchors didn’t have to take the stand … there are many, many advantages.

So is mediation legally binding?

As with everything in the law: it depends. The parties generally create a legally binding document at the end of the mediation, which contains all the agreed upon provisions. This document is legally binding, but anything said before that may not be.

Book Suggestion

The Mediation Process: Practical Strategies for Resolving Conflict by Christopher W. Moore looks good if you want to know the ins and outs of resolving legal disputes through mediation (affiliate link).

10 Reasons Why Mediation is Better Than Litigation

1. Confidentiality: What happens in mediation, stays in mediation. This is so both sides can come to the table without fear of repercussions of admitting anything. As a side effect, things that are said in mediation won’t make it to the media.
2. Flexible: The parties are free to make an agreement for anything, as long as it is legal.
3. Informal: Since this is not a court hearing, parties are often more comfortable. This can really help in high-tension cases, especially when the parties are not making business decisions but emotional decisions.
4. Voluntary: Both sides must agree to go to mediation, and either side can leave at any time.
5. Cost Effective: Trials are very expensive, even if you only settle right before going in front of the jury. People and businesses can also measure cost in the emotional toll.
6. Neutral: Mediators are trained to help both parties come to a resolution. It often helps to have a neutral facilitator show you the negatives in your case.
7. Less Media: For Fox News, this was very important. Remember Amber Heard and Johnny Depp? A mediation could have resolved the issues without a “trial by Twitter.” The deeper a party is at fault, the more media backlash he/she/it could receive.
8. Closure: Amber Heard finally took this lesson, when she agreed to settle with Johnny Depp for $1 million instead of a lengthy appeals process. Since both sides agreed to whatever resolution, they end the lawsuit. It can give each party peace, with a structured settlement that both can adhere to.
9. More Compliance: Also, because that settlement was agreed, the possibility that both sides will comply with the order is much higher. You might think that businesses wouldn’t renege on their deals, but it happens. But custody and divorce issues have a high chance of parties not following orders due to the emotional factor.
10. Saves Embarrassment: Probably the most important factor here for Fox News is that it didn’t need to put up any high profile person on the stand. This was a career and a business saving move. But even in person-to-person lawsuits, the embarrassment factor is high. Airing of one’s dirty laundry is … dirty.

With all this hype about the glories of mediation, you might think it’s the bees knees. But it does have its disadvantages, too.

10 Reasons When Mediation Is Not Appropriate or Does Not Work

1. Discovery May Be Limited: You ever see one of those courtroom dramas where the bad guy is revealed on the stand? Yeah, that actually does happen (although not as much as you’d think, given the television drama). One of the parties could be seriously shooting himself/herself/itself in the foot.
2. Fraud: What happens if one of the parties brings a fraudulent suit to the table? Or one party is lying? Unfortunately, the recourse in that situation is very tough.
3. Limited Participants: Although business mediation is quite different, in certain personal mediations, the legal system limits who can participate. Let’s say we have a custody dispute. Well, custodies often involve other people outside of the two parents disputing: the children, step-parents, and grandparents, for example. One party may be unwilling to even negotiate without checking in with a spouse.
4. Bias: Bias is everywhere. You may be subjected to a judge who dislikes women, or jury members who dislike a certain race. These wouldn’t be obvious, but it definitely happens. But what happens if the mediator is biased? This can have a huge impact on the negotiations. Just because mediators say they are neutral doesn’t mean that they always are.
5. No Formal Rules of Evidence: Depending on the stage of the lawsuit when mediation happens, things like hearsay (“she said this”) can come into play, which might degrade the negotiations.
6. Communications: Sometimes, a lawsuit is so emotionally charged that the participants being in the room together, even if they are willing to mediate, is counterproductive.
7. Aftermath: Just because you shouldn’t talk about what was said in mediation … doesn’t mean that people abide by that.
8. Manipulation: I’ve met several fraudsters. Unfortunately, one party is often willing to mediate in good faith. The other party uses mediation to his/her/its advantage, knowing that they can bind the other party, and then does whatever.
9. No Appeal Process: The good part of mediation is the closure. The bad part is that you often have a very limited period in which to make a decision … that is binding and offers no appeal. My father always told me to sleep on any major decision, but with mediation, you often don’t get to do that.
10. Price: Most of the time, mediation is cost effective. But if the parties do not come to an agreement, mediation is an added cost on top of the lawsuit.

It is my opinion that Fox News did not want to air its dirty laundry. Or force its news anchors, personnel, or its CEO to admit, on stand, the behind-the-scenes. And despite the disappointment that many feel about not seeing a trial, Fox made the best business decision. Unfortunately, we now have many other trials to look forward to watching, which will continue to drudge up Fox’s name.