By Deborah Beylus and Elinor Robin, PhD
Our divorce industry cohorts all seem to be captivated by Johnny Depp’s televised defamation trial against ex-wife Amber Heard. And they are not alone. The Fairfax, Virginia Courthouse where the trial is taking place is drawing lots of public attention. Spectator wannabees queue-up early each morning in the hopes of getting a wristband to watch from inside the courtroom. There is a sea of news cameras and a band of photographers who stand on ladders, near the rear exit, capturing Depp and Heard as they come and go. The bruhaha is a true circus, complete with emotional support alpacas who pose for photos.
Court TV and the Law & Crime Network are live streaming from inside the courtroom. However, the Judge, Penney Azcarate, signed an order banning selfies or autographs in the courtroom; and her deputy keeps a vigil against courtroom spectators who laugh loudly, cheer, or roll their eyes.
Depp is suing Heard for fifty-million dollars, for defamation, resulting from an opinion piece Heard wrote in The Washington Post in 2018. While her article did not name Depp, it is widely known that two years before the article was published, she had filed for divorce and a restraining order, alleging he physically assaulted her. Depp has denied all claims of abuse and says her op-ed has caused irreparable damage to his career. The suit was filed in Fairfax, Virginia because The Washington Post houses its printing press and online server there. Heard has filed a counterclaim against Depp for one hundred million dollars.
Disney’s Pirates of the Caribbean film franchise is at the core of the case. Depp says that after the publication of Heard’s piece he was dropped by Disney, resulting in the loss of millions in income. According to Heard, Depp's behavior had already harmed his lucrative movie career.
While the libel lawsuit is supposed to center on whether Depp was defamed in Heard’s article, most of the trial has focused on the ugly details of the couple's brief marriage. Traumatic, intensely intimate, and unflattering details of their tumultuous relationship, drug and alcohol-fueled lifestyle, and domestic abuse are making front-page news worldwide. Depp denies ever striking Heard, while Heard's attorneys argue that Depp physically and sexually abused her and that his denials lack merit because he was often drunk or high to the point of blacking out. These details, offered as background, are not directly relevant to the defamation action, but they may ultimately decide the fate of each litigants’s reputation.
Like many other disputes, this case has both a financial and an emotional component. According to Depp, he had originally proposed that the couple issue a joint letter saying they loved each other, and the media had created a storm around them. If this is true, it is likely that Heard’s refusal to play nice has amplified Depp’s hurt and anger and fueled the emotions that are driving the current chaos.
As Family Mediators we wonder if Depp would have been better off ignoring the whole mess. Afterall, avoidance (with or without added insight) can be a viable conflict management strategy. And we question if Depp’s attorneys would have been more effective if they had gotten him to engage in mediation or a Med/Arb process that could have kept things confidential.
So, what is mediation? Mediation is an informal (yet structured) conflict-resolution process. Simply put, mediation is assisted negotiation. If Depp and Heard had gone to mediation, the impartial mediator would have provided them with an opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement. Mediation could have provided Depp and Heard with some advantages, including:
1. Mediation is confidential. In mediation there are no transcripts or recordings are generated, and no media frenzy is spawned. All the dirty laundry could have been kept out of the public eye. And, the mediation discussions would not be used later as evidence (if they were unsuccessful and did have to go to court).
2. Mediation is quicker. In mediation, we can do in hours or days, what typically takes a lawsuit months or years. When parties want to get on with their lives, mediation provides a more reasonable timetable. The Depp v Heard trial was delayed due to COVID keeping the parties stuck in a cycle of legal bills and emotional upheaval. Instead, this case could have been resolved in a Zoom mediation during lockdown.
3. Mediation is less expensive. Mediation is less expensive than lawsuit. Depp and Heard could have gone to mediation with or without attorneys. Certainly, without attorneys their costs would have been minimal. But, even with attorneys, the quicker turnaround could have saved them a small fortune.
4. Mediation is informal. The informality of mediation allows parties to be more engaged than they can be in a court-driven process with an abundance of rules and procedures.
5. Mediation allows for the preservation of relationships. One of the most overlooked benefits of mediation is that it can help preserve relationships, business and personal, that would likely be destroyed through years of litigation. Unlike litigation, which is inherently a win/lose process, mediation allows parties to save face and/or maintain some level of civility with each other.
6. Mediation provides the parties with greater flexibility and control. In mediation the parties (not the judge) are the decision makers. This means that the parties have more control along the way and over the outcome.
7. Mediation provides an opportunity to get it off your chest. In mediation, the parties have a chance to tell their story and expose perceived wrongs. Negative emotions (grief, anger, sadness, betrayal, loss, disillusionment, fear, and hurt) can be worked through and positive emotions (relief, freedom, forgiveness) can help bring about closure and reconciliation.
8. Mediation allows each side to see another point of view. Many conflicts are based in misunderstanding. Judgements that the parties have made about each other can be challenged in mediation. Black-white/good-evil assumptions can be questioned in mediation and each side can begin to better understand the other’s motivations, perceptions, and needs.
9. Mediation results in greater satisfaction. For all the reasons above, parties generally report more satisfaction with a mediated outcome. And, because there is no winner or loser, no admission of fault or guilt, and the settlement is mutually agreed upon, parties are typically more likely to comply with a mediated settlement over a court order.
Mediation is not a fit for every case. And entering mediation at the right time is a critical factor in the success of the outcome. Ultimately, as we see it, Depp v Heald was a case that was primed for mediation. Mediation could have given these parties workable solutions that they are not going to get in court. Clearly, they have both suffered a missed opportunity.
