As expected, the new season of Fairly Legal has veered even further away from a realistic portrayal of mediation, to give more attention to the drama of the characters’ personal lives and business ambitions. As far as I can tell from the season opener, mediation is just Kate’s job, in the same way that many TV characters have a job that adds some additional drama to their personal dramas. The changes that have been made in the second season emphasize the characters’ multiple problems even more than last year, which is probably what the show had to do to succeed, so I can’t really complain about that. I also probably don’t even need to remind people that they shouldn’t expect to see anything resembling the actual work of mediators on this show. I don’t need to explain, for example, that mediators do not go around tracking down witnesses to try to persuade them to testify at trial.

On the other hand, the show usually manages to raise at least one or two genuine issues that can provoke a real discussion. For one, this episode skirted over the ethical questions posed by Kate’s personal flirtation with the plaintiff’s lawyer in the mediation, as well as her firm’s business flirtation with the lawyer on the other side. More interestingly, the show portrayed a client who didn’t understand the concept of settlement at all. Frequently in settlement negotiations we encounter clients or adversaries who believe that trial will reveal the truth, and most likely vindicate their position. In this case, the show introduced a reluctant plaintiff who wasn’t sure he was entitled to payment at all. He was willing to accept compensation if it could be shown that the company had done something wrong, but would have been happy to receive nothing if the company was blameless. He therefore could not understand the basis for accepting a settlement offer that represented an approximation of the likelihood that the company might or might not be found liable in a related class action trial.

There was some recognition on the show that trials do not always reveal the truth. One would think a show extolling the virtues of mediation would follow that premise to its conclusion. They could have shown that juries can see the same set of facts in different ways, or that witnesses often distort the truth at trial, or that multiple outcomes are possible at trial for any number of other reasons. Instead, the show decided to send Kate on an absurd quest to discover the smoking gun memo that would have proved whether the company was guilty or not, because that was what the party in mediation wanted to know, and therefore the mediator took it upon herself to satisfy a party’s desire that was not being satisfied by his attorney, by the opposing party, or by the legal system itself. The mediator becomes the hero only by providing the thing that the rest of the system is supposed to, but somehow failing to provide (truth), and not by providing what mediation promises (peace) at all. This tells us that the television audience is presumed to hunger for the truth, and is not so interested in finding a peaceful resolution to conflict which leaves the truth unknown. It seems in the world of fiction, and in the real world as well, we yearn to find out who is right and who is wrong, who should be rewarded and who should be punished. We’re not quite ready to accept that resolution of conflict has value in and of itself, whether or not we can discover the truth.

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by Joe Markowitz

Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: www.mediate-la.com/