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Fake News and Mediation

Part I


{4 minutes to read}  So what’s the relationship between “fake news” and mediation? Fake news has a long and sordid history in this country and it has often been used for nefarious purposes, frequently to further oppress the least fortunate as a means of gaining or preserving political or economic advantage.

  • The KKK was born 160 years ago.
  • The Palmer Raids happened 100 years ago.
  • Joe McCarthy started his evil charade almost 70 years ago. 

As for the present…. Well, making the truth known can sometimes be an almost impossible task, especially if the fake news fits in with preconceived ideas or preserving a status quo. 

So what’s the relationship between “fake news” and mediation?

We often think of the court system as a system that searches for truth, and does so uninfluenced by preconceived ideas or preserving a status quo.  Thus the idea that justice is blind, a tabula rasa on which evidence is written and which serves as the basis for determining the truth. Most of us know this ideal is not always reached.  Jurors and judges don’t walk into court with their minds erased of prior knowledge or life experience. Nor would we want them to. But we would also like them to decide the facts of a dispute based solely on the evidence presented at a trial.

Mediation differs from the litigation process in many ways, but one fundamental difference is that a mediation is not necessarily a search for the truth. It is solely an attempt to resolve a dispute. But resolving a dispute does not necessarily mean opposing parties will reach an agreement on the facts of what occurred. Indeed, opposing parties often see the other side as presenting some form of “fake news.” And rarely do mediations bring about resolutions because one side says, “Ah, you know, you’re really right about what happened. I was wrong, so sorry, what can I do to resolve this?

In the end, mediations lead to resolutions not because one side convinces the other as to facts, but because the parties get to talk about facts, sometimes with the other side present, sometimes just to the mediator, or a little bit of both. The talk itself can feel vindicating and create an atmosphere that frees parties to discuss:

  • What they want
  • What they need
  • How they feel
  • What they think is fair
  • What they can do or can’t do

Being confidential is also a critical component of mediation.

And while a mediator does provide feedback to the parties about their positions, and the strengths and weaknesses of those positions, the mediator does not make any factual determinations. Nor do the parties have to agree that “this is what happened” to reach an agreement.

I don’t want to suggest that facts are unimportant. If temperatures and sea levels are rising, putting millions of lives and national economies at risk, it’s critical to deal with facts. The mediation process may be of limited use in the wider political arena. But in many instances, discussing “facts” without resolving factual disagreements can actually help resolve a dispute.

Have you ever found this to be true?

More on this next time.

Gary Shaffer Gary Shaffer
Shaffer Mediation

About Us

An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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