Fox Settlement Shows Remote Mediation Works

Since the advent of the virtual mediation essentially with the rise of remote attendance resulting from the pandemic, lawyers seem skeptical of the effectiveness of this mediation technique. This skepticism persists, even after many polls of over a thousand full-time neutrals revealed that settlement rates remain as before largely the same as in-person cases. As evidenced by employing a mediator colleague of mine from the National Academy of Distinguished Neutrals (NADN.org) floating down the Danube during a high-stakes, eve of trial negotiation in a high profile case with results certain to be impactful, it is possible to achieve resolution by remote attendance. This method is pretty much the default in the state of Florida and around the country and is usually possible despite standing orders that may not specify so in the name of self-determination with agreement of the parties. People are now facile with off the shelf technology like Zoom and are quite used to interacting with others in this medium. Likewise, mediators using this space are in their third year of building rapport without actually being there, not counting prior experience with telephone negotiation, etc. (also used here among as many as 50 calls and was always an option before Covid). Don't underestimate the ability to get things done in short order without sitting down at the same table. But if you must, we still do that too! See more here-- https://tinyurl.com/tfj4bttt and https://tinyurl.com/ybp3zy5j

Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ