Opinion |

In Fox News settlement, mediation wins the day

In my early days as a mediator in Washington, D.C., I shared an office with Jerry Roscoe. He was a nice enough guy and smart, too, always eager to work on high-profile cases.

Roscoe got his wish earlier this month, while taking a Danube River cruise.

It was the eve of a highly anticipated trial, pitting Fox News against Dominion Voting Systems. Dominion had sued Fox for defamation, seeking $1.6 billion in damages. As reported by Sarah Ellison, Josh Dawsey and Rosalind Helderman in The Washington Post, Judge Eric M. Davis of the Delaware Superior Court asked lawyers for both companies to try to work out their differences and find common ground. It was April 14, a Friday. The trial was set to begin the following Monday.

The two sides worked all weekend but ran out of time. That’s when they sent an emergency email to Roscoe. I can imagine how he felt reading it.

Dominion was seeking accountability for Fox’s role in spreading the false claim that their machines had been used to steal the White House from former President Donald Trump. For Fox, the stakes were high. Fox News Executive Chairman Rupert Murdoch was expected to testify, along with several high-profile hosts and staffers.

According to the Post reporters, pretrial revelations had been “excruciating” for Fox. Employees of the network regularly doubted the content that was consumed nightly by millions of viewers — including the myth that Trump had won the 2020 election, which they proffered for weeks and months along with conspiracy theories.

And so, mediator Jerry Roscoe represented “one last shot for resolution on the eve of the most highly anticipated libel lawsuit in a generation.” On Sunday, Judge Davis said he would delay the trial by one day. On Monday, Roscoe brought the lawyers together on a call to “feel out their red lines.”

Roscoe told the Post that expectations were muted at first. He conducted as many as 50 calls. With emotions high, progress stalled. The lawyers headed for the courtroom and on Tuesday morning, the jury was seated.

But Roscoe was quietly making headway. Like any skilled mediator, he identified the issues in contention: Along with Dominion’s monetary demand, the two sides disagreed on the language that Fox would release acknowledging the network had spread falsehoods about Dominion. The company sought an apology.

After many calls, the sides got closer. Just before 4 p.m., Davis returned to the bench. “The parties have resolved the case,” he announced. Fox agreed to pay $787.5 million to Dominion, saying, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”

The outcome wasn’t universally praised — far from it. More than one person told me they wish Fox had its day in court, hoping to see Murdoch and others on the witness stand. Some critics of the settlement have said that absent an apology from Fox, it felt empty, as if Dominion had sold out.

I’ve mediated hundreds of cases over the years and one thing is true: When a mutually acceptable agreement is reached, it’s not guaranteed that both sides will get everything they want. In fact, it’s unlikely.

It’s where Roscoe worked his mediator magic. Fox was unwilling to apologize, the stakes too high. As Barbara Kellerman wrote in Harvard Business Review, public apologies are risky, and every word matters. Along with accepting responsibility and expressing regret, a good apology includes an assurance that the offense won’t be repeated.

Kellerman said, “A successful apology can turn enmity into personal and organizational triumph — while an apology that’s too little, too late, or too transparently tactical can open the floodgates to individual and institutional ruin.”

At the end of the day, it was another “a-word” that really mattered to Dominion: accountability. A spokesperson said, “An apology is about accountability, and today Dominion held Fox accountable. Fox paid a historic settlement and issued a statement acknowledging that the statements about Dominion were false.” It was the best possible outcome, when you consider the fractures in our country.

Thanks, Jerry Roscoe, for shining a light on mediation, work we have been doing at the National Conflict Resolution Center for 40 years. While our cases aren’t high profile, like Dominion v. Fox, every settlement is just as satisfying.

Dinkin is president of the National Conflict Resolution Center, a San Diego-based group working to create solutions to challenging issues, including intolerance and incivility. To learn about NCRC’s programming, visit ncrconline.com